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PART-I (INDIAN POLITY-M.

LAXMIKANT)
Chapter-1
Constitutional Framework
Historical Background
• East India Company’s Rule
1. Beginning- 1765(Diwani of Bengal, Bihar and Orissa) & Got Revenue & Civil
Justice rights.
2. End- 1857(Sepoy Mutiny), after which British Crown was ruling, not Company.
• Regulating Act 1773
1. Designated ‘Governor of Bengal' as the Governor-General of Bengal.
2. Created an Executive Council of four members to assist
3. Lord Warren Hastings.
4. Governors of Bombay and Madras were now subordinate to the governor-general of
Bengal
5. Strengthened the control of the British Government over the Company to report on its
revenue, civil, and military affairs in India.
6. Establishment of a Supreme Court at Calcutta (1774)
7. Banned Company officials from engaging in any private trade or accepting bribes from
'natives’.

• Pitt'sIndia Act 1784


1. Differentiated the commercial and political functions of the Company.
2. From now Court of Directors to manage the commercial affairs
3. New body Board of Control to manage the political affairs.
4. Thus a system of Double Government.
5. From now Board of Control to supervise and direct all operations regarding revenues
of the British possessions in India.
6. Thus from the above act: -
o British government was given supreme control
o Company 's territory was called BRITISH POSSESSIONS for the first time

• Charter Act 1813


1. The Act asserted crown's sovereignty over British India.
2. Allotted Rs 1 Lakh to promote education in India
3. Allowed Christian missionaries to propagate English and preach Christianity.

• Charter Act 1833


1. Now Governor-General of Bengal designated as the Governor-General of India
vested with civil and military powers.
2. Thus Government of India having authority over the entire area possessed by the British
in India
3. Lord William Bentick
4. Deprived governors of Bombay and Madras of their legislative powers.
5. Ended commercial activities of the East India Company and was now
purely administrative body.
6. Attempted to introduce a system of open competition for selection of civil servants
without any discrimination with Indians but this could not be implemented due to
opposition from the Court of Directors.

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• Charter Act 1853
1. Separated, legislative and executive functions of the Governor-General's
council. Addition of six new members called legislative councillors to the council.
2. Separated Governor-General's legislative council which came to be known as the
Indian (Central) Legislative Council.
3. Extended the Company's rule and allowed it to retain the possession of Indian territories
on trust for the British Crown. .
4. Local representation in the Indian (Central) Legislative Council.
5. Open competition system of selection and recruitment of civil servants.

• Government of India Act 1858 .


1. From here onwards India was to be ruled in the name of Her majesty.
2. Changed the designation of the Governor-General of to that of Viceroy of India
3. Lord Canning
4. Ended the system of double government established by Pitt's India Act
5. Created a new office, Secretary of State for India directly responsible to
British parliament
6. The secretary of state (Lord Stanley) was made the chairman of the council which was
an advisory body having 15 members.

• Indian Council Act 1861


1. Viceroy should nominate some Indians as non-official members of his expanded council
2. In 1862, Lord Canning, nominated three Indians to –
o The Raja of Benaras
o The Maharaja of Patiala
o Sir Dinkar Rao
3. Initiated the process of Decentralisation thus Bombay and Madras Presidencies
legislative powers were restored
4. Establishment of new legislative councils for Bengal, North-Western Frontier Province
(NWFP) and Punjab.
5. Recognition to the 'portfolio system, introduced by Canning in 1859.
6. Viceroy had the power to issue ORDINANCE of validity 6 months

• Indian Council Act 1892


1. Act made indirect provision for the use of election. However, term ELECTION was no
where used in the act
2. Provided for the nomination of some non-official members.
3. Gave legislative councils the power to discuss the budget.
4. Increased the number of non officials’ members but in both central and provincial
councils.

• Government of India Act 1909


1. Also called Morley-Minto Reforms
2. Introduced communal representation for Muslims by recognising the concept of
separate electorate.
3. Addition of Indian to the executive council of governors and viceroys. SP Sinha was the
first one to be added.
4. Members were allowed to ask supplementary questions and move resolutions over the
budget
5. Increased the size of the legislative councils, both Central and provincial

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6. Thus Lord Minto was called as FATHER OF COMMUNAL ELECTORATE in India

• Government of India Act 1919


1. AKA Montagu-Chelmsford reforms/ Mont-Ford Reforms
2. Separating the central and provincial subjects thus allowed to make laws on their
respective list of subjects.
3. The provincial subjects further divided into: -
o Transferred subjects - governor has to deal with them on the advice of council
of ministers responsible to legislative council.
o Reserved subjects - governor has to deal with them on the advice of council of
ministers and here not responsible to legislative council.
Hence system of DYARCHY was introduced
4. Bicameralism and direct elections in the country.
5. 3 of the 6 members of the Viceroy's executive Council were to be Indian except the
commander-in-chief.
6. Communal representation was consolidated as Sikhs, Indian Christians, Anglo-Indians
and Europeans were given separate electorate
7. Adult Suffrage was given on the basis of property, tax or education
8. Establishment of a public service commission.
9. Appointment of a statutory commission to inquire into and report. Thus Simon
commission was appointed
10. Office of the High Commissioner for India in London was established.

Simon Commission
1. Set up under the GOI Act 1919 to look into the functioning of 1919 Act after a decade
but setup 2yrs earlier in Nov, 1927
2. 7-member commission:
o Headed by Sir John Simon
o No Indians
3. Submitted their report in 1930 with recommendations:
o Abolition of Dyarchy
o Responsible Self govt for the provinces
o Creation of a federation of British India and the Princely States (Unified form of
govt)
4. Round Table Conferences to consider the proposals of Simon Commission:
o Result- “White Paper on Constitutional Reforms”
o Considered by the Joint Selection Committee of the British Parliament
o Influenced by the GOI Act 1935

Communal Award
1. August 1932: British PM Ramsay Mac Donald suggested a method of improving
representation of the minorities and suggested
2. The separate electorates for depressed classes
3. Gandhi said this is not acceptable and you will destroy the unity of Hindu society through
such a scheme and he went on a fast unto death against this scheme
4. Poona Pact: Agreement between BR Ambedkar and Gandhi
o Agreement was that there would be Hindu joint electorate with reservation for
depressed classes.

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Government of India Act 1935
1. Abolished dyarchy and introduced 'provincial autonomy' in provinces.
2. Adoption of dyarchy at the centre.
3. Abolished the council of India
4. Extended franchise.
5. Introduced bicameralism.
6. Separate electorates for depressed classes, women and labour class.
7. Governor was required to act with the advice of ministers responsible to the provincial
legislature.
8. Establishment of a Federal Court, RBI, Federal Public Service Commission, Provincial
PSC & Joint PSC

Indian Independence Act 1947


1. Declared India as an independent and sovereign state from August 15,1947.
2. Provided for the partition of India and creation of two independent dominions of India
and Pakistan. (Mountbatten Plan June 3, 1947)
3. Right to secede from the British Commonwealth.
4. Abolished the office of viceroy, secretary of state for India
5. Appointed governor-general by the British King on the advice of the dominion cabinet
Empowered the Constituent Assemblies of the two dominions to frame and adopt any
constitution legislate for their respective nations
6. Granted freedom to the Indian princely states either to join the Dominion of India or
Dominion of Pakistan or to remain independent.
7. Governance of each of the dominions and the provinces by the Government of India
Act of 1935.
8. Designated the Governor-General of India and the governors as constitutional (nominal)
heads of the states.
o India: Mountbatten (15Aug 1947-21June 1948) & C Rajagopalachari (21Jun 1948-26
Jan 1950) & Pakistan: Jinnah

First Cabinet

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CHAPTER 2 (INDIAN POLITY-M.LAXMIKANT)


CONSTITUENT ASSEMBLY
Revision Notes
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1. FIRST DEMAND:
 1934: MN Roy (communist leader)
 Nehru: 'The Constitution of free India must be framed, without outside interference, by a
Constituent Assembly elected on the basis of adult franchise'.
2. 1940: August Offer
 British accepted demand for Constituent Assembly
3. Constituent Assembly created under the Cabinet Mission (November, 1946)
4. Partly elected, partly nominated
5. Elections indirect by provincial assemblies (themselves elected on a restricted franchise)
6. Proportional representation by means of a single transferable vote
7. Princely states to nominate their representatives
8. Strength:
 Supposed to be 389 (296 British India, 93 Princely States)
 Congress won 208
 ML won 73, but boycotted the Assembly
 Princely states initially didn’t nominate members (many joined 08 Later)
 First meeting attended by only 211 members (299 members under IIA 1947)
9. Seats allotted in proportion to population: 1 per million on average
10. Communities: General, Muslim and Sikh (women from each of these sections were
represented in the Assembly)
11. Dr. Sachchidananda Sinha elected temp president (oldest member, French practice)
12. President: Dr. Rajendra Prasad
13. VP's: C Mukherjee, VT Krishnamachari
14. Constitutional Advisor Sir BN Rau
15. Chief Draftsperson :SN Mukherjee

COMMITTEES:
 8 Major, many minor
 Major: Drafting Committee; Union Powers; Union Constitution, Provincial Constitution,
Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas;
Rules of Procedure; States Committee; Steering Committee

DRAFTING COMMITTEE:
 Most important
 Set up 29 August, 1947
 Chair: Dr. BR Ambedkar (Father of the Constitution, Chief Architect of the Constitution
Modern Manu)
 Members:
Alladi Krishnaswami Ayyar, Dr KM Munshi, Syed Mohammad Saadullah , N Madhav Rau,
TT Krishnamachari, N Gopalaswamy Ayyanagar
 (BL Mitter and DP Khaitan were replaced due to ill health)

CONSTITUENT ASSEMBLY FACTS:


 HVR Iyenagar: Secrertary to constituent Assembly
 Prem Bihari Narain Raizada: Calligrapher
 VK Vaidya: Hindi Calligrapher
 Symbol: Elephant
 Artists like BR Sinha, Nand Lal Bose, etc. illuminated the original constitution

ENACTMENT & ENFORCEMENT:


 On November 26, 1949, Constitution adopted:
A Preamble, 395 Articles, 8 Schedules

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 A major part of the Constitution enforced on 26 January, 1950


 December 1929: Lahore Session of INC, Decision to celebrate 26 Jan 1930 as
Independence Day; demand for Poorna Swaraj formalised

STATUS OF THE ASSEMBLY:


 The Indian Independence Act of 1947 made the Assembly
 A fully sovereign body o
 Free to frame any constitution o
 A legislative (chaired by Gv Mavlankar)
 Muslim League withdrew, Princely States slowly joined
 11 sessions over 3 years

OTHER FUNCTIONS:
 Ratified India's membership of the Commonwealth
 Adopted the National flag, national anthem and national song
 Elected Rajendra Prasad as the first President of ta

OBJECTIVES RESOLUTION:
 Moved on 3 December1946, by Jawaharlal Nehru
 Outlines the “fundamentals and philosophy of the constitutional structure”
 India an Independent Sovereign Republic
 Constituent Assembly to draw the Constitution for fubure governance of India
 India shall be a Union of territories
 Territories will be autonomous units with powers and functions of governance and
administration, except for the powers assigned to the Union (Laid down federal principle)
 All power derived from the people- Democratic principle o
 All people of India will be guaranteed
 justice, social, economic and political
 Equality of status of opportunity and before the law
 Freedom of thoughts, expression, belief, faith, worship, vocation, association and
action
 Subject to law and public morality
 Safeguards for minorities, backward and tribal areas and depressed and other backward
classes
 Constitution will maintain integrity of territory of the Republic, and its sovereign rights
 Promote world peace and welfare of (hu)mankind
 Jan 22 1947: resolution unanimously adopted
 Its modified version forms the Preamble of the constitution

CRITICISM OF THE ASSEMBLY:


 Not representative: no direct elections
 Not sovereign: created by the British Government
 Took too much time to frame the Constitution (American constitution: 4 months)
 Some sections had disproportionate representation: Congress, Lawyer-politicians;
Hindus(they dominated it)
 CA a provisional Parliament till 17 th April, 1952
 1st elected Parliament: May 1952

PYQ’s:

1. 2017 PRELIMS 62. In the context of Indian history, the principle of Dyarchy (diarchy)' refers to
(a) Division of the central legislature into two houses.
(b) Introduction of double government i.e., Central and State governments
(c) Having two sets of rulers; one in London and another in Delhi
(d) Division of the subjects delegated to the provinces into two categories.

2. 2016 PRELIMS 64. The Montague-Chelmsford Proposals were related to

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(a) social reforms (b) educational reforms


(c) reforms in police administration (d) constitutional reforms

3. 2015 PRELIMS 28. The Government of India Act of 1919 clearly defined
(a) the separation of power between the judiciary and the legislature
(b) the jurisdiction of the central and provincial governments
(c) the powers of the Secretary of State and the Viceroy
(d) None of the above for India

4. 2014 PRELIMS 82. The 1929 Session of Indian National Congress is of significance in the history
of the Freedom Movement because the
(a) attainment of Self-Government was declared as the objective of the Congress
(b) attainment of Poorna Swaraj was adopted as the goal of the Congress
(c) Non-Cooperation Movement was launched
(d) decision to participate in the Round Table Conference in London was taken

5. 2013 PRELIMS 9. With reference to Indian History, the Members of the Constituent Assembly
from the Provinces were
(a) directly elected by the people of those Provinces
(b) nominated by the Indian National Congress and the Muslim League
(c) elected by the Provincial Legislative Assemblies
(d) selected by the Government for their expertise in constitutional matters

6. 2016 MAINS GS PAPER 1 It would have been difficult for the Constituent Assembly to complete
its historic task of drafting the Constitution for Independent India in just three years but for the
experience gained with the Government of India Act, 1936. Discuss.

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CHAPTER-3
(INDIAN POLITY-M.LAXMIKANT)
SALIENT FEATURES OF THE CONSTITUTION
Revision Notes
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FEATURES OF THE CONSTITUTION


1. LENGTHIEST WRITTEN CONSTITUTION:
 Till 2016: Preamble has 465 Articles, 25 Parts &12 Schedules
 Why is it so lengthy?
 It's for a very vast and diverse country
 Single constitution for the whole country (except J&K)
 Influenced by the very Lengthy GOI Act 1935
 Written by Lawyers
 Has administrative provisions in addition to principles of governance
 Many factors that are often covered in ordinary Legislation by other modern democracies are
incorporated in the Constitution

2.RIGID AND FLEXIBLE CONSTITUTION:


 Rigid: special procedure for amendment Article 368
 Either by special majority o Or special majority+ ratification by at least half of the states
 Special majority:- 2/3 majority of members of each House present and voting, majority (50% +) of
the total membership of each House
 Flexibility: Some provision of the Constitution can be amended with simple majority
 Not amendments under Article 368
 eg: altering boundaries of states

3. FEDERAL SYSTEM WITH UNITARY BIAS :


 Federal features: two governments, written Constitution, independent judiciary, bicameralism,
division of powers, supremacy and rigidity of Constitution
 Unitary features: strong Centre, single Constitution, singe citizenship, flexibility of the Constitution,
integrated judiciary, Centre appointing the state governor, all-India services, emergency provisions
 Term Federation' not used anywhere in the Constitution
 India a 'Union’ of states (Article 1)
 Indestructible
 No right to secede
 Not the result of an agreement between states

4. PARLIAMENTARY GOVERNMENT :
 Principle of cooperation and co-ordination between Legislative and executive organs
 AKA Westminster model/ Prime Ministerial Government
 Parliamentary system is based on idea of Separation of powers
 Characteristics of Parliamentary government
 Nominal and real executives
 Majority party rule
 Collective responsibility of the executive to the legislature
 Ministers as members of the legislature
 PM/CM the leader
 Dissolution of the Lower House
 Indian system based on British system but there are certain differences:

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 Indian Parliament not a sovereign body


 Derives powers from the Constitution
 Indian state a Republic
 British Parliament sovereign, British state a Monarchy

5. SYNTHESIS OF PARLIAMENT SOVEREIGNTY & JUDICIARY SUPREMACY:


 Sovereignty of Parliament: British principle
 Supremacy of judiciary: American principle
 The Indian system combines these principles to establish a system that suits our needs
 SC can declare any Parliamentary Laws as unconstitutional (Article 13: power of judicial review)
 Parliament can amend large parts of the Constitution

6. SCOPE OF JUDICIAL REVIEW:


 In India Narrower than scope in USA (due process of law)
 India follows principle of 'procedure established by law' (Article 21) Article 21: No person shall be
deprived of his Life or personal liberty except according to procedure established buy Laws
 Procedure established by Law: A law duly enacted by the legislature, following correct protocols
and procedures
 Problem: may not be fair, may not uphold principles of justice and equity
 Due process of law:
 Checks if the laws is fair and just.
 American theory contains many implied rights
 Due process balances the power of the Law of the land and protects the individual person from it
 The state must respect all legal rights that are owed to a person and Laws that the state enacts
must conform to the laws of the Land

7. INTEGRATED & INDEPENDENT JUDICIARY:


 SC: at the head of an integrated judicial system
 Hierarchy
 Courts enforce central and state laws
 USA: Federal courts enforce federal (central) Laws; state judiciary enforces state laws
 Independence of judiciary ensured through security of tenure, fixed service conditions, etc.

8. FUNDAMENTAL RIGHTS:
 In Part III
 6 broad rights to all citizens
 Right to Equality (Article 14-18)
 Right to Freedom (Article 19-22)
 Right against Exploitation (Article 23-24)
 Right to Freedom of Religion (Article 25-28)
 Cultural and Educational Rights (Article 29-30)
 Right to Constitutional Remedies (Article 32)

 Protect political democracy


 Available against the state except right to untouchability
 Justiciable
 Limited arbitrary powers of the state
 SC can issues writs for restoration of rights i.e. Habeas corpus, Mandamus, Prohibition, Certiorari,
and Quo Warranto
 Subject to reasonable restrictions

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 Can be curtailed by the Parliament


 Can be curtailed by National Emergency (except Article 20 and 21)

9. DPSP:
 Article 36-51 in part IV of the constitution
 novel feature' : Ambedkar
 Non justiciable
 supports the ideal of social and economic democracy
 Conducive for establishing a welfare state in India
 DPSP are fundamental to the governance of the country (Constitution)
 State to apply DPSP while making laws
 Force of morality and public opinion behind it
 Minerva Mills case 1980, SC: Indian Constitution is founded on the bedrock of balance between the
FR and the DPSP.

10. FUNDAMENTAL DUTIES:


 Added by 42nd Constitutional Amendment (CA) of 1976
 During internal emergency
 On recommendation of Swaran Singh Committee
 86th CA (2002) added one more i.e. to educate your chid
 Article 51A comprises of 11 duties
 Part VI-A
 Remind citizens that they have duties while they enjoy their rights
 Inspired by the USSR Constitution

11. SECULAR STATE:


 No official state religion
 India follows the Positive concept of secularism i.e. equal respect and protection to all religions
 Western concept negative concept means complete separation of state and religion
 Constitutional provisions of secularism
 Preamble: o 42nd CA 1976: term 'secular' added to the Preamble and secures Liberty of belief,
faith and worship
 DPSP: Article 44: UCC(Uniform Civil Code)
 Fundamental Rights:
a) Article 14: equality before Laws (irrespective of religion)
b) Article 1s: no discrimination on the grounds of religion
c) Article 16: no discrimination in public employment the grounds of religion
d) Article 25: Freedom of conscience; right to freely practice, profess and propagate any religion
e) Article 26: right to every religious denomination to manage its religious affairs
f) Article 27: no compulsory payment of taxes for the promotion of any religion
g) Article 28: no religious instruction in educational institutes maintained by the State
h) Article 29: any section of citizens has the right to conserve distinct Language, script or culture
i) Article 30: minorities have the right to establish and administer education institutions of their
choice

12. EMERGENCY PROVISIONS:


 Enable the President to manage extraordinary situations
 Safeguard the sovereignty, unity, integrity and security of the country,the democratic system and
the Constitution
 Emergency temporarily converts the federal structure into a unitary one (unique feature of the
Indian constitution)

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 National Emergency
 Article 352 on grounds: war, external aggression, armed rebellion
 State emergency/Presidents rule
 Article 356: failure of the Constitutional machinery
 Article 365: failure to comply with the directions of the Centre
 Financial Emergency
 Article 360: threat to financial stability or credit of India

13. 3-TIER GOVERNMENT:


 Originally: two tiers
 73rd and 74th CA (1992) gave a third tier
 Panchayats  Urban Local Governments
a) 73rd CA a) 74th CA
b) Part IX b) Part IX-A
c) 243 to 243-0 c) Article 243-P to 243-ZG
d) Schedule 11 d) Schedule 12

14. COOPERATIVE SOCIETIES:


 97th CA, 2011
 It gave Constitutional status and protection to cooperatives
 Article 19: right to form a cooperative (an FR)
 Article 43-B: promotion of coops a DPSP
 Part IX-B; Article 243-ZH to 243-ZT = "The Cooperative Societies"
 To secure the democratic, professional, autonomous and economically sound functioning of
cooperative societies.
 Parliament to make Laws for multi-state coops
 States for other coops
 A cooperative is "an autonomous association of persons united voluntarily to meet their common
economic social, and cultural needs and aspirations through a jointly owned and democratically-
controlled enterprise".

15. SINGLE CITIZENSHIP:


We don’t have state citizenship likewise in USA, where each person is not only a citizen of USA but
also a citizen of the particular state to which he belongs. But in India we have a single citizenship
i.e. INDIAN citizen.
16. UNIVERSAL ADULT FRANCHISE:
Every citizen who is not less than 18 years of age has a right to vote without any discrimination of
caste, race, religion, sex, literacy, wealth, and so on. The voting age was reduced to 18 years from
21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
17. INDEPENDENT BODIES:
 Envisaged by the Constitution as the bulwarks of the democratic system of Government in India.
 These are: Election Commission Comptroller and Auditor-General Union Public Service Commission
State Public Service Commission.
 The Constitution ensures the independence of these bodies through various provisions like security
of tenure, fixed service conditions, expenses being charged on the Consolidated Fund of India, and
so on.

SOURCES OF CONSTITUTION:
Sources Features Borrowed

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Government of India Act of 1935 Federal Scheme, Office of governor,


Judiciary, PSC’s, Emergency provisions and
administrative details.
British Constitution Parliamentary government, Rule of Law,
legislative procedure, single citizenship,
cabinet system, prerogative writs,
parliamentary privileges and bicameralism.
US Constitution Fundamental rights, independence of
judiciary, judicial review, impeachment of
the president, removal of SC and HC judges
and post of VP.
Irish Constitution DPSP’s, nomination of members to Rajya
Sabha and method of election of president
Canadian Constitution Federation with a strong Centre, vesting of
residuary powers in the Centre, appointment
of state governors by the Centre, and
advisory jurisdiction of the Supreme Court.
Australian Constitution Concurrent List, freedom of trade,
commerce and inter- course, and joint sitting
of the two Houses of Parliament.
Weimar Constitution of Germany Suspension of Fundamental Rights during
Emergency
USSR Constitution Fundamental duties and the ideal of justice
(social, economic and political)
French Constitution Republic and the ideals of liberty, equality
and fraternity in the Preamble.
South African Constitution Procedure for amendment of the
Constitution and election of members of
Rajya Sabha
Japanese Constitution Procedure established by Law.

CRITICISM OF THE CONSTITUTION:


 A Borrowed Constitution: contains nothing new and original
 Carbon Copy of the 1935 Act: Dr. B.R. Ambedkar answered the above criticism as “Nobody holds
any patent rights in the fundamental ideas of a Constitution”.
 Un-Indian or Anti-Indian: It does not reflect the political traditions and the spirit of India
 An Un-Gandhian Constitution: It does not contain the philosophy and ideals of Mahatma Gandhi
about village panchayats and district panchayats.
 Elephantine Size: Too bulky and too detailed and contains some unnecessary elements
 Paradise of the Lawyers: Too legalistic and very complicated language used.

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Page 1 of 5

INDIAN POLITY-M.LAXMIKANT
CHAPTER-4
(PREAMBLE OF THE CONSTITUTION)
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Revision Notes
WHAT IS A PREAMBLE?
 An introduction/preface to the Constitution
 Holds the essence of the Constitution
OUR PREAMBLE
 Based on the objectives Resolution
 Reveals that the Constitution derives its authority from the people of India.
 Outlines the objectives of the Constitution (justice, Liberty, equality and fraternity)
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, Social, Economic and Political;
LIBERTY of thought, expression, belief, faith and worship
EQUALITY of status and opportunity and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.
SIGNIFICANCE
 Part of the Constitution
(a) But non justiciable
(b) Not a source of power
(c) Not a Limitation of powers
(d) Keshavananda Bharati case (1973)
(e) LIC of India case (1995)
(f) Berubari Union case,1960: SC said Preamble not a part]
 Outlines the basic philosophy and fundamental values of the Constitution.
 M Hidayatullah (former CJI): "the soul of the Constitution"
AMENDABILITY
 Amended once o 42nd CA, 1976
(a) Three new words added: Socialist, secular and Integrity
 Keshavananda Bharati case: Preamble can be amended under Article 368, subject to basic features
doctrine.
TERMS USED UNDER PREAMBLE
1. SOVEREIGN
 India is an independent state
 Not a dominion, nor dependent on any other state/nation etc.
 No authority above it
 Conducts its own affairs
 India's membership of the Commonwealth or the UNO does not Limit her sovereignty
 Can acquire foreign territory, or cede its territory
2.SOCIALIST
 Earlier an implicit principle expressed through DPSPs
 Made explicit by the 42nd CA 1976
 INC Avadi session (1966): resolution to create a socialist pattern of society
 Democratic socialism, not communist socialism
 Communist socialism: state socialism
(a) Nationalisation of means of production o
(b) Abolition of private property
 Democratic socialism: mixed economy

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(a) SC: aims to end poverty, ignorance, disease and inequality of opportunity o Gandhian
socialism with influences of Marxian socialism
(b) NEP(New Economic Policy),1991 diluted socialist principles
3. SECULAR
 Added with the 42nd CA 1976
 But implicit through articles 25-28
 Indian Constitution embodies the positive concept of Secularism i.e. all religions in our country(
irrespective of their strength) have the same status and support from the state.
4. DEMOCRATIC
 Power with the people a
 Popular sovereignty
 India has representative parliamentary democracy with
(a) UAF
(b) Regular elections
(c) Independent judiciary
(d) Rule of Law
 Preamble indicates existence of political and social and economic democracy
 Switzerland: direct democracy, in which people exercise their supreme powers directly.
 Four devices:
a) Referendum: a proposed legislation is referred to the electorate for settlement by direct vote
b) Initiative: people can propose a bill
c) Recall: voters can remove a representative
d) Plebiscite: method of obtaining opinion of the people on any public issue. Usually used for
territorial disputes
 The Indian Constitution provides for representative parliamentary democracy under which the
executive is responsible to the legislature for all its policies and actions
 This dimension was stressed by Dr. Ambedkar in his concluding speech in the Constituent Assembly on
November 25, 1949, in the following way:
“Political democracy cannot last unless there lies at the base of it social democracy. What does
social democracy mean ? It means a way of life which recognises liberty, equality and fraternity. The
principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a
union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.
Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and
equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few
over the many. Equality without liberty, would kill individual initiative”.
5. REPUBLIC
 Elected head of state and elected indirectly for a fixed period of five years-President
 Popular sovereignty with the people, not in an individual Like a queen
 Absence of a privileged class
 Public office open to all citizens
6. JUSTICE
 The term 'justice' in the Preamble embraces three distinct forms-social, economic and political.
 Social justice denotes the equal treatment of all citizens without any social distinction based on
caste, colour, race, religion, sex and so on
a) It means absence of privileges being extended to any particular section of the society, and
b) Improvement in the conditions of backward classes (SCs, STs and OBCs) and women.
 Economic justice denotes the non-discrimination between people on the basis of economic
factors
a) It involves the elimination of glaring inequalities in wealth, income, and property.
 Distributive justice denotes Combination of social and economic justice
 Political justice implies that all citizen should have equal political rights, equal access to all political
offices and equal voice in the government.
 Idea of Justice: from Russian Revolution.
 Secured through FRs and DPSPs.

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7.LIBERTY
 The term 'liberty' means the absence of restraints on the activities of individuals
 At the same time, providing opportunities for the development of individuals.
 The Preamble secures to all citizens of India liberty of thought, expression, belief, faith and worship.
 Secured through their Fundamental Rights, enforceable in court of law, in case of violation.
 Reasonable restrictions- Liberty as elaborated in the Preamble is very essential for the successful
functioning of the Indian democratic system. However, liberty does not mean license to do what one
likes, and has to be enjoyed within the limitations mentioned in the Constitution itself. In brief, the
liberty conceived by the Preamble or fundamental rights is not absolute but qualified.
 The ideas of Liberty, equality , and fraternity in our Preamble have been taken from the French
Revolution (1789-1799).
8. EQUALITY
 Absence of special privileges to any section of the society
 Adequate opportunities for all individuals without any discrimination
 Preamble: equality of status and opportunity.
 Preamble embraces three dimensions of equality i.e., Civic, political and economic
 Civic equality assured through:
 Equality before the law (Article 14).
 Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth (Article 15).
 Equality of opportunity in matters of public employment (Article 16).
 Abolition of untouchability (Article 17).
 Abolition of titles (Article 18).
 Political equality through:
 Article 325: No person is to be declared ineligible for inclusion in electoral rolls on
grounds of religion, race, caste or sex
 Article 326: Elections to the Lok Sabha and the state assemblies to be on the basis
of adult suffrage i.e., right to vote.
 Economic equality through:
 Article 39(DPSP): Secures to men and women equal right to an adequate means of
livelihood and equal pay for equal work.
9. FRATERNITY
 Sense of brotherhood (sorority: Sisterhood)
 Expressed through system of single citizenship
 FD: Article 51-A
 To promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic, regional or sectional diversities and to renounce practices
derogatory to the dignity of women.
 Fraternity has to secure the dignity of the individual and the unity and integrity of the nation.
 Individual Dignity: Material Betterment, Democratic Set-up, Personal Development
 ‘Unity and Integrity of the Nation’ embraces both the psychological and territorial dimensions of
national integration
 Overcoming hindrances to national integration like communalism, regionalism, casteism, linguism,
secessionism and so on
 Article 1: India is a ‘Union of States’
PREAMBLE A PART OF CONSTITUTION OR NOT
The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading
cases on the subject: Berubari Case Keshavananda Bharati case

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1. Berubari case was the Presidential Reference under Article 143(1) of the Constitution of India on the
implementation of the Indo-Pakistan Agreement Relating to Berubari Union and Exchange of Enclaves
which came up for consideration by a bench consisting of eight judges headed by the Chief Justice B.P.
Singh.
 Justice Gajendragadkar delivered the unanimous opinion of the Court: The court ruled out that
the Preamble to the Constitution, containing the declaration made by the people of India in
exercise of their sovereign will, no doubt it is "a key to open the mind of the makers" which may
show the general purposes for which they made the several provisions in the Constitution but
nevertheless the Preamble is not a part of the Constitution
2. Keshavananda Bharati case has created history.
 For the first time, a bench of 13 judges assembled and sat in its original jurisdiction hearing the
writ petition
 Thirteen judges placed on record 11 separate opinions. –
 To the extent necessary for the purpose of the Preamble, it can be safely concluded that the
majority in Keshavananda Bharati case leans in favour of holding,
(a) That the Preamble to the Constitution of India is a part of the Constitution;
(b) That the Preamble is not a source of power or a source of limitations or prohibitions;
(c) The Preamble has a significant role to play in the interpretation of statutes and also in the
interpretation of provisions of the Constitution.
(d) Keshavananda Bharati case is a milestone and also a turning point in the constitutional
history of India
(e) D.G. Palekar held that the Preamble is a part of the Constitution and, therefore, is amendable
under Article 368
(f) It can be concluded that Preamble is introductory part of our Constitution.
(g) Preamble is based on the Objective Resolution of Nehru.
(h) Preamble tells about the nature of state and objects that India has to achieve.
(i) There was a controversial issue whether Preamble was part of Indian Constitution there were
number of judicial interpretation but finally in Keshavananda Bharati case it was held that the
Preamble is a part of the Constitution
3. Preamble enshrines the ideas and philosophy of the constitution, and NOT the narrow objectives of
the governments. It also does NOT provide any legal framework of constitutional law
4. Preamble is neither a source of power nor a source of limitations. It neither provides any power nor
imposes any duty.
5. Preamble is neither enforceable not justifiable in a court of law. This implies that courts cannot pass
orders against the government in India to implement the ideas in the Preamble.

PYQ’s
Q.1 2017 48.The mind of the makers of the Constitution of India is reflected in which of the following?
(a) The Preamble (b) The Fundamental Rights.
(c) The Directive Principles of State Policy (d) The Fundamental Duties

Reason: Laxmikant 4.4: reflects the dreams and aspirations of the founding fathers of the Constitution-
“expresses what we had thought or dreamt so Long”

Q.2 2017 38. Which one of the following objectives is not embodied in the Preamble to the
Constitution of India ?
(a) Liberty of thought (b) Economic liberty (c) Liberty of expression (d) Liberty of
belief

Q.3 2013 28. ‘Economic Justice' as one of the objectives of the Indian Constitution has been provided
in
(a) the Preamble and the Fundamental Rights Principles of State Policy the Directive Principles of State
(b) the Preamble and the Directive
(c) the Fundamental Rights and Policy
(d) None of the above

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Q.4 2016 GS PAPER 2 Discuss each adjective attached to the word Republic in the 'Preamble'. Are they
defendable in the present circumstances?

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INDIAN POLITY(M.LAXMIKANT)
CHAPTER-5
UNION AND ITS TERRITORY
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ARTICLES 1-4
 Part 1 of the Constitution: "Union and its Territory "

ARTICLE 1
 Name and territory of the Union
 India, that is, Bharat is a Union of states
 States are divided only for administrative convenience not that states have any
predetermined identity.
 First schedule: Names and territorial extent of states
 29 states, 7 UTs
 Territory of India: States+ UTs+ territories that may be acquired by Gol
 Union of India: only states
 India can acquire foreign territory as it is sovereign state
 Methods of acquisition: cession, occupation conquest or subjugation
 India acquired Goa, Daman and Diu, Sikkim etc.

ARTICLE 2
 Admission or establishment of new states
 Parliament can admit into the Union of India, or establish new states on such terms and
conditions as it thinks fit.
 ARTICLE 2-A: Sikkim to be associated with the Union-Repealed

ARTICLE 3(Parliament’s power to reorganise the states)


 Formation of new states and alternation of areas, boundaries or names of existing states
 Parliament can increase or decrease the area of any state
 Alter the boundary or name of any state
 Create new states by
 Separating territory from any state
 Uniting states or parts of states
 Uniting territory with states or parts of states
 To do this, President has to get the views of the state legislature concerned.
 Then, can recommend introduction of bill to the Parliament (not possible without Presidents
recommendation)
 President not bound by the views of the state
 For UTs, Parliament can take decisions without reference of the President or opinion of the
UT.

ARTICLE 4
 Laws made under Article 2 & 3 i.e., admission or establishment of new states and formation of
new states and alteration of areas, boundaries or names of existing states.
 Are not amendments under Article 368
 Need simple majority
 Ordinary Legislative Process

BERUBARI UNION CASE

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 In 1960, SC examined if the power of the Parliament to diminish areas of states means that
the Parliament can cede Indian territory
 The Central government had decided to cede the territory of Berubari Union in West Bengal
to East Pakistan
 SC said that the Parliament cannot cede Indian territory to a foreign country under Article 3
 Can only cede by amendment under Article 368
 Thus, 9th CA 1960
 But settlement of boundary dispute can be through executive action i.e., No need for CA

100th CA, 2015


 For exchange of certain territories between India and Bangladesh o
 India to Bangladesh: 111 enclaves
 Bangladesh to India: 51 enclaves
 Demarcation of 6.1 km border
 Modified territories of Assam, West Bengal, Meghalaya and Tripura

INDIA-BANGLADESH BOUNDARY
 4000 kms +
 Determined by the Radcliffe Line, 1947
 Bagge Award (1950) and Nehru-Noon Agreement (1958) tried to resolve some disputes
 1960: Berubari Union Case, 9th CA
 1974: Land Boundary Agreement between India and Bangladesh
 to solve demarcation of boundary issue
 Not ratified as it involved some exchange of territory which would need CA
 2011: Protocol to the 1974 Agreement
 Governments of Assam, Meghalaya, West Bengal and Tripura coordinated
 2015: Revised version of 1974 Agreement adopted, 100th CA

INTEGRATION OF PRINCELY STATES


 At the time of Independence, 552 princely states in the Indian boundary
 549 joined India
 Hyderabad, Kashmir and Junagarh refused to join
 Integration of these 3 states took place as:
 Hyderabad: police action
 Junagarh: Referendum
 Kashmir: Instrument of Accession

REORGANISATION OF STATES
 Initially, ad-hoc structuring on states in four parts
 Demand for reorganisation on linguistic basis
 June 1948: Linguistic Provinces Commission appointed
 Chair: SK Dhar (Dhar Commission)
 Suggested administrative convenience over Linguistic reorganisation
 December 1948: JPV Committee
 Jawaharlal Nehru, Sardar Vallabhbhai Patel and Pattabhai Sitaramayya
 Rejected Language as basis for reorganisation.
 October 1953: Government forced to create Andhra Pradesh out of Madras on linguistic basis
 Extended agitation and death of Gandhian activist and prominent Congress leader Potti
Sriramuli after a 56 day hunger strike
 December 1953: 3 member States Reorganisation Commission appointed under Fazl Ali, KM
Panikkar and HN Kunzru (Fazl Ali Commission)

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 Rejected one language one state theory


 4 factors should be considered while states reorganisation
a) Unity and security of India
b) Linguistic and cultural homogeneity
c) Considerations of finance, the economy and administration
d) Welfare of people and nation
 Suggested 16 states and 3 UTs over the existing 4-part division of states
 Recommendations accepted
a) States Reorganisation Act 1956
b) 7th CA 1966
c) 14 states and 6 UTs created.
d) STATES: Andhra Pradesh, Assam, Bihar, Bombay , J&K, Kerala, Madhya Pradesh, Madras,
Odisha, Punjab, Rajasthan, Uttar Pradesh, West Bengal o
e) UNION TERRITORIES: Andaman and Nicobar Islands; Delhi; Himachal Pradesh; Laccadive,
Minicoy and Amindivi Islands; Manipur; Tripura

EVOLUTION OF STATES & UTs


YEAR STATE/UT’S DETAILS
1953 Andhra Pradesh Out of Madras; 1st Linguistic State
1954 Daman & Diu Occupied from Portugese,10th CA 1961: UT
1954 Puducherry Occupied from French, 14th CA 1962: UT, Name
Change:2006
1960 Maharashtra & Gujarat Bombay Divided
1961 Goa, Daman & Diu Acquired from Portuguese with police action;
12th CA 1962:UTs
1987: Statehood to Goa
1963 Nagaland Naga Hills and Tuensang Carved out of Assam
1966 Haryana & Chandigarh Carved out of Punjab, on recommendation of
the Shah Commission(1966); demand for Sikh
homeland by Akali Dal, led by Master Tara Singh
1971 Himachal Pradesh Statehood(18th state of Indian Union)
1972 Meghalaya, Manipur & Tripura Statehood
1975 Sikkim 36th CA 1975: Full statehood, Article 2A and
Schedule 10 repealed, Article 371F added(after
Referendum)
History: Till 1947, a princely state ruled by
Chogyal Protectorate in 1947
35th CA 1974 made Sikkim an associate state,
added Article 2 A & Schedule 10(terms of
Association)
1987 Mizoram & Arunachal Pradesh From UT to State via 1986: Mizo Peace Accord-
GOI and Mizo National Front
2000 Chhattisgarh, Jharkhand & Uttarakhand From MP, Bihar and UP respectively
2014 Telangana From Andhra Pradesh

NAME CHANGE
YEAR STATE/UT NAME CHANGED TO
1950 United Provinces Uttar Pradesh
1969 Madras Tamil Nadu
1973 Mysore Karnataka

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1973 Laccadive Minicoy and Amindivi Islands Lakshadweep Islands


1992 Delhi National Capital Territory of Delhi(69th CA 1991)
2006 Uttaranchal Uttarakhand
2006 Pondicherry Puducherry
2011 Orissa Odisha

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INDIAN POLITY-M.LAXMIKANT
CHAPTER-6(CITIZENSHIP)
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MEANING OF CITIZENSHIP
 India: citizens and aliens o
 Citizens: members of the State, owe allegiance, enjoy rights, shoulder responsibilities
 Aliens do not enjoy all rights; they are members of another State;
 Enemy aliens: member of a country which is at war with India. Do not have rights under Article
22 (arrest and detention)

PRIVILEGES OF CITIZENSHIP
 Article 15: right against discrimination
 Article 16: right to equality of opportunity in public employment
 Article 19: freedom of speech and expression
 Articles 29 and 30: cultural and educational rights
 Right to vote, contest elections, eligibility to hold certain public office
 NOT available to aliens

CONSTITUTIONAL PROVISIONS(ARTICLES 5-11)


 Part 2
 Articles 5-8 deal with citizenship rights at the time of independence
 Those who Lived in India, those who migrated from Pakistan, those who migrated to
Pakistan and returned later
 E.g.: Article 6 deals with citizenship of those who migrated from Pakistan to India
 Article 9: no dual citizenship o
 Article 10: citizenship can only be revoked according to Law
 Article 11: Parliament to legislate on other matters related to citizenship
 Accordingly, The Citizenship Act (1955) created
 8 Amendments, Latest 2015

SINGLE CITIZENSHIP
 Only Indian citizenship, no state citizenship (like Canada) o
 To mitigate against discrimination by states in favour of their own citizens o
 E.g right to vote, hold public offices o
 To promote feeling of unity and fraternity
 Switzerland, USA: dual citizenship (state and nation)
 Exceptions
 Under Article 16 (right to equality of opportunity in public office), Parliament can prescribe
residence as a condition for certain employments
 Requirement as to Residence Act 1957 (expired 1974)
 Article 371-D: special provisions for Andhra Pradesh provides for residential qualification
for certain public offices
 J & K legislature defines who are 'permanent residents of the state, and confers special
privileges upon them like ownership of immovable property (Article 35-A)
 Under Article 15, discrimination is prohibited oly on the grounds of religion, race, caste, sex
or place of birth and not on grounds of residence
 Special benefits on the grounds of residence can be provided
 Under Article 19, freedom of movement can be restricted to protect interests of Schedule
Tribes.

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ACQUIRING INDIA'S CITIZENSHIP


 Birth
 Descent
 Registration
 Naturalisation
 Incorporation of territory

1. BIRTH
 Born in India between 1950-1987: Indian citizen irrespective of parents nationality
 After 1987: born in India + one parent is Indian at the time of birth
 After 2004: born in India + one Indian parent illegal migrant parent at the time of birth
 No citizenship by birth for children of foreign diplomats posted in India + enemy aliens

2. DESCENT
 Born outside India between 1950-1992: Indian if father is Indian at the time of birth
 Born outside India after 1992: Indian if either parent is Indian at the time of birth
 Born outside India after 2004, of Indian descent: not a citizen unless registered at an Indian
consulate (normally within a year, after a year with permission of GoI

3. REGISTRATION
 Must not be an illegal migrant
 Central Government can register only
 Ordinarily resident meaning:
 12 months continuous residence immediately before application or citizenship o
 Six years residence in India over 8 years, starting from the time immediately before the 12
month residence
 Total 7 years over 9 years
 Conditions:
 Indian origin + ordinarily resident in India for 7 years
 Indian origin + ordinarily resident outside undivided India
 Married to an Indian ordinarily resident in India for 7 years
 Offspring of Indians
 OCI for 5 years+ ordinarily resident in India for 1 year
 A person of full age and capacity who had an Indian parent, and was an Indian + has been
ordinarily resident in India for 1 year
 Oath of Allegiance:
 True faith and allegiance to the Constitution
 Faithfully observe laws
 Fulfil duties as a citizen

4. NATURALISATION
 Central government can grant certificate
 Naturalised citizen must take oath of allegiance e
 Conditions:
 Should not be an illegal migrant
 Must renounce any other citizenship o
 Should not be subject/citizen of any country where Indians cannot become citizens
 Resided in India or worked for Government of India for both
1. 12 months immediately before application
2. 11 years in 14 years before the 12 months
 Good character

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 Knows an 8th schedule language


 If granted citizenship, should reside in India/ work for GoI, an international organisation of
which India is a part/ any society, company or body of persons estbd. In India.
 Conditions can be waived for a person who has rendered distinguished service in field of
science, philosophy, art, literature, world peace or human progress.

5. INCORPORATION OF TERRITORY
 If a territory becomes a part of India, then its residents become citizens of India
 e.g. with Daman and Diu etc.

LOSING INDIA'S CITIZENSHIP


 3 methods under the Citizenship Act 1955:
 Renunciation
 Termination
 Deprivation

1. RENUNCIATION
 Must be a citizen of full age and capacity
 Can make a declaration of renunciation of citizenship during peace time
 Declaration shall be withheld during war time
 Minor children of a person renouncing citizenship also Lose citizenship.
 May resume after they turn 18

2. TERMINATION
 When an Indian citizen voluntarily acquires citizenship of another country during peace time

3. DEPRIVATION
 Central government has to compulsorily deprive someone of her citizenship if
 S/he obtained citizenship fraudulently
 Shows disloyalty to the Constitution
 Unlawfully communicated/traded with the enemy during war time
 Within 5 years after registration/naturalisation get incarcerated in any country for two
years
 Ordinarily resident outside India for 7 continuous years unless
a) She is a student abroad
b) Service of government of India/international organisation India is a part of
c) Registered annually with the Indian consulate with intention to retain Indian
citizenship

OVERSEAS CITIZENSHIP OF INDIA (OCI)


 2000: High level committee on the Indian Diaspora under LM Singhvi was set up
 To recommend measures for a constructive relationship with them
 Report in 2002
 Recommendation:
 Grants of dual citizenship to Persons of Indian Origin (PIOs) of certain countries.
 Action:
 Citizenship (Amendment) Act 2003
 Made provisions for acquisition of OCI by PIOs of 16 countries (not including Bangladesh
and Pakistan)
 Omitted all provisions relating to & recognising Commonwealth Citizenship from the
principle Act

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 Citizenship (Amendment) Act 2005


 Expanded scope of OCI status to PIOs of all countries except Pakistan and Bangladesh
 OCI not actually a dual citizenship (prohibited by Article 9 of the Constitution)
 Citizenship (Amendment) Act 2015
 Modified OCI provisions
 Introduced OCI Cardholder Scheme by merging PIO card scheme (introduced 2002) and
OCI card scheme (introduced 2005)
 Both had been running parallel, causing confusion
 PIO card scheme rescinded
 All existing PIO card holders deemed OCI cardholders
 Replaced nomenclature of “Overseas Citizens of India” with “Overseas Citizen of Indian
Cardholder”.

REGISTRATION OF OCI CARDHOLDER


(1) Interested person has to register an application with the Central govt. On receiving the
application, the Central govt can register as an OCI Cardholder
(a) Any person of full age and capacity
 Who is a citizen of another country, but was a citizen of India at the time of, or at any time after
the commencement of the Constitution
 Who is a citizen of another country, but was eligible to become a citizen of India at the time of
the commencement of the Constitution
 who is a citizen of another country, but belonged to a territory that became part of India after
the 15th August 1947
 Who is a child or grandchild or a great grandchild of such a citizen
(b) A person, who is a minor child of a person mentioned in clause (a); or
(c) A person, who is a minor child, and whose both parents are citizens of India or one of the
parents is a citizen of India; or
(d) Spouse of foreign origin of a citizen of India or spouse of foreign origin of an OCI cardholder
and whose marriage has been registered and subsisted for a continuous period of not less than two
years immediately preceding the presentation of the application
 No person, who or either of whose parents or grandparents or great grandparents is or had been a
citizen of Pakistan, Bangladesh or such a country as the Central Government may specify, shall be
eligible for registration as an OCI Cardholder.
(2) The Central Government may specify the date from which the existing persons of Indian
Origin Cardholders shall be deemed to be OCI Cardholders (decided on o9-01-2015)
(3) Notwithstanding anything contained in point (1), Central government may, if it is satisfied that
special circumstances exist, after recording the circumstances in writing, register a person as an OCI
Cardholder.

CONFERMENT OF RIGHTS OF OCI CARDHOLDERS


 Entitled to rights as specified by the Central government.
 NOT entitled to the following rights:
 Right to equality of opportunity in matters of public employment
 Not eligible for election as President, Vice-President, member of Parliament or State
Legislative Assembly or State legislative Council.
 Not eligible for appointment as Judge of SC or HCs, or appoints to public services and posts
in connection with affairs of the Union or of any state except when specified by the Central
Government
 Not to be entitled for registration as a voter

BENEFITS OF OCI CARDHOLDERS

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 Multiple entry Lifelong visa for visiting India for any purpose
 But will need special permission to undertake research work
 Exemption from registration with Foreigners Regional Registration Officer (FRRO) or Foreigners
Registration officer (FRO) for any length of stay in India.
 Parity with NRIs in respect of all facilities available to them in economic, financial and
educational fields except in matters relating to the acquisition of agricultural or plantation
properties
 NRIs have all benefits available to Indian citizens subject to notifications issued by the
Government from time to time
 Charged same entry fee as domestic Indian visitors to visit national parks and wildlife
sanctuaries in India

RENUNCIATION OF OCI CARD


 OCI cardholder can make a declaration in the prescribed manner to renounce the card and her
registration as a Cardholder
 The spouse of foreign origin of a such a person will also cease to be a OCI Cardholder
 Minor children of such a person will also cease to be a OCI Cardholder

CANCELLATION OF OCI CARD


 Central Government can cancel the OCI Card if it is satisfied that:
 Card was obtained by fraud, false representation or concealment of material fact
 Cardholder has shown disaffection towards the Constitution of India
 Cardholder has unlawfully traded or communicated with an enemy with which India is at
war
 Cardholder holder has been sentenced to two or more years of imprisonment within 5
years of obtaining the card
 It is necessary to do so in the interest of sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country, or in the interests of the general
public
 The marriage of an OCI has been dissolved by a competent court, or has not been dissolved
by the Cardholder has also solemnised another marriage

COMPARING NRI, PIO & OCI CARDHOLDER

SR. ELEMENTS OF NRI PIO(PERSON OF OVERSEAS CITIZEN OF


NO. COMPARISON INDIAN ORIGIN) INDIA CARDHOLDER
1. Who? An Indian citizen A person who or A person registered as
who is ordinarily Overseas Citizen of India
whose any of
residing outside (OCI) Cardholder under the
ancestors was an
India and holds an Citizenship Act, 1955
Indian national
Indian Passport
and who is
presently holding
another country’s
citizenship
/ nationality
i.e. he/she is
holding foreign
passport
2. Who is eligible? - - Refer (I) Registration of OCI
Cardholder

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3. How can one get ? - - Eligible persons to apply


online
4. Where to apply? - - Till such time the online
payment facility is
introduced, the following
instructions shall be
followed:-
(i) The print out of the
online application form,
completed in all respects,
along with enclosures,
demand draft and
photograph in duplicate
should be submitted to the
Indian Mission/Post having
jurisdiction over the
country of which the
applicant is a citizen or if
he/she is not living in the
country of his/her
citizenship, to the Indian
Mission/Post having
jurisdiction over the
country of which the
applicant is ordinarily a
resident
(ii) If the applicant is
residing in India, the print
out of the online
application form,
completed in all respects,
along with enclosures,
demand draft and
photographs in duplicate
should be submitted to the
Foreigners Regional
Registration Offices (FRROs)
according to their
jurisdictional control.
5. Fees ? - - (a) in case of application
submitted in Indian
Mission/ Post abroad–US
$ 275 or equivalent in
local currency.
in case of application
submitted in India–
Rs.15,000/-
6. Which nationals - - No person, who or either of
are ineligible ? whose parents or
grandparents or great
grandparents is or had been

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a citizen of Pakistan,
Bangladesh or such other
country as the Central
Government may specify,
shall be eligible for
registration as an Overseas
Citizen of India Cardholder
7. What benefits one All benefits as No specific Refer (II) Conferment of
is entitled to ? available to Indian benefits Rights to OCI Cardholder
citizens subject to
notifications issued
by the Government
from time to time
8. Does s/he require No Yes Can visit India without visa
visa for visiting for life long
India ?
9. Is he/she required No Yes if the period of No
to register with the stay is for more
local police than 180 days
authorities in India
?
10. What activities can All Activities Activity as per the All activities except
be undertaken in type of visa research work for which
India ? obtained special permission is
required from the Indian
Mission/Post/ FRRO
concerned.
11. How can one He/she is an Indian As per the As per the Citizenship
acquire Indian citizen Citizenship Act(1955), a person
citizenship? Act(1955), S/he designated as an OCI
has to be an cardholder for 5yrs and
ordinary resident who is an ordinary resident
in India for a in India for 12 months
period of 7yrs before making an
before making an application of registration is
application of eligible for grant of Indian
registration Citizenship

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INDIAN POLITY-M. LAXMIKANT


CHAPTER-7
(FUNDAMENTAL RIGHTS)
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WHAT ARE FUNDAMENTAL RIGHTS?
 In Part 3 of the Constitution
 Articles 12-35
 Inspired by USA's Bill of Rights
 Justiciable
 Elaborate List in India
 "Magna Carta" of India
 Guaranteed to all citizens without discrimination (some available to other persons as well)
 Uphold political democracy
 Secure equality of individuals, public interest and unity of the nation
 Prevent authoritarian, despotic rule
 Protect individual liberties against state invasion
 Limit arbitrariness by the state
 "Aim at establishing a government of the laws and not of people" (Laxmikant, 7.1)
 "Fundamental" as they are guaranteed and protected by the Constitution
 Constitution is the fundamental Law of the land
 Essential for all round development of individuals
 material, intellectual, moral, spiritual etc.
 Have reasonable restrictions
 Not absolute and these balance individual liberty with social control
 Most available against the State, few against private actions (e.g.: rights against untouchability)
 Some are negative: limit the state's authority
 Others are positive: confer privileges upon people
 Defended and guaranteed by the Supreme Court (Article 32)
 Can be curtailed by the Parliament by a CA (which does not affect the basic structure)
 Can be suspended during national emergency (Except Article 20 and 21).
 Article 19 suspended only when emergency is declared on grounds of external aggression
 Limited by Articles 31A, 31B and 31C
 31A: saving of laws providing for acquisition of estates etc
 31B: validation of certain acts and regulations included in the 9th Schedule
 31C: saving of laws giving effect to certain directive principles
 Article 33 allows the Parliament to Limit the scope of fundamental rights available to the armed forces,
para military forces, police forces, intelligence agencies etc.
 Article 34 allows their Limitation during martial laws means military laws.
 Only the Parliament can make a Law to enforce FR (even though most are self-executory). (Article 35)
LIST OF FUNDAMENTAL RIGHTS (PART 3, ARTICLES 12-35)
CATEGORY ARTICLE RIGHT
RIGHT TO 14 Equality before law and equal protection of laws
EQUALITY 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of
(ART.14-18) birth
16 Equality of opportunity in matters of public employment
17 Abolition of untouchability and prohibition of its practice
18 Abolition of titles except for military and academic
RIGHT TO 19 Protection of six rights regarding freedom of (i) speech, (ii) assembly,
FREEDOM (iii) association (iv)movement (v) residence and (vi) profession
(ART.19-22) 20 Protection in respect of conviction for offences

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21 Protection of Life and personal Liberty


21A Right to elementary education
22 Protection against arrest and detention
RIGHT 23 Prohibition of traffic in human beings and forced Labour
AGAINST 24 Prohibition of employment of children in factories etc.
EXPLOITATION
(ART.23-24)
RIGHT To 25 Freedom of conscience and free profession, practice and propagation of
FREEDOM OF religion
RELIGION 26 Freedom to manage religious affairs
(Art. 25-28) 27 Freedom from payment of taxes for promotion of any religion
28 Freedom from attending religious instruction or worship in certain educational
institutions
CULTURAL 29 Protection of language, script and culture of minorities
AND
EDUCATIONAL 30 Right of minorities to establish and administer educational institution
RIGHTS
(Art. 29-30)
RIGHT TO 32 Right to move to the Supreme Court for the enforcement of fundamental
CONSTITUTIO rights. SC can issues the writs of (i) habeas corpus, (ii) mandamus, (iii)
NAL REMEDIES prohibition,
(iv) certiorari and (v) quo warrant
ARTCILE 12
 Defines State" as used in references to fundamental rights, aka Part III of the Constitution
 State includes the following:
 Government and Parliament of India (Unions executive and legislative organs) o
 Government and legislatures of the States
 Local Authorities (e.g. district boards, PRIs, ULBs etc)
 Other authorities, statutory or non-statutory (e.g. LIC, ONGC)
 i.e. state includes agencies of the state as well - wide definition
 SC: Article 12 includes even private bodies working as an instrument of the State
 The actions of these agency can be challenged in courts for violating FRs.
ARTCILE 13
 Provides for judicial review
 All Laws that are inconsistent with or in derogation of any FR shall be void
 SC under Article 32 and HC's under Article 226 have the power of judicial reviews
 "Law" for the purposes of Article 13 is
 Laws enacted by legislatures
 ordinances
 Executive legislation like order, bye-laws, rule- regulation or notification
 Custom or usage having the force of Laws
 Article 13 does not define a CA as a Law, but SC said that a CA can be challenged for violating an FR
that forms a part of the basic structure of the Constitution (Keshavananda Bharati case, 1973)
RIGHT TO PROPERTY
 Originally a fundamental right
 Article 19(1)(f): right to acquire, hold and dispose off property
 Article 31(I): right against deprivation of property (for citizens and non-citizens), except by
authority of laws
 Article 31(II): State could acquire/requisition property only for public purposes, after the payment
of compensation
 44th CA 1978 abolished right to property as an FR
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 Repealed Article 19(1)(f) and Article 31 o


 Inserted Article 30OA in Part XII: no person shall be deprived of /his/ property except by authority
of Law
 Made is a legal/constitutional right
 As a legal right, and not a FR, the right to property can be regulated by an ordinary Law of the
Parliament Private property is protected from executive action, but not from legislative action
 Article 32 is not available to protect the right to property
 No guaranteed compensation
 But state has to pay compensation of property if acquired from a minority educational institution
(Article 30)(44th CA 1978)
 Or of acquired from a person holding land under personal cultivation within the statutory ceiling
limits (Article 31A) (17th CA 1964)
RIGHT TO EQUALITY: ARTICLE 14-18
I. Article 14: Equality before the law and equal protection of laws
 Available to all persons (citizens, foreigners, legal persons)
 Aims to establish equality of legal status, opportunity and justice
 EQUALITY BEFORE LAW
 British concept
 Means absence of privileges for any persons/sections of
 All persons are equally subject to ordinary Law, administered by ordinary courts
 No person is above the Laws
 Negative concept
 EQUAL PROTECTION OF LAW
 American concept
 Equal treatment under equal circumstances
 No discrimination while applying laws to people situated similarly
 Positive concept
 TREATING EQUALS EQUALLY
 Under Article 14, class legislation is prohibited.
 But reasonable classification can be done if it is not arbitrary, artificial or evasive.
 Should be based on 'intelligible distinctions'
 RULE OF LAW
 Concept by British jurist AV Dicey
 3 elements
 No arbitrary power (no punishment except for breach of law)
 Equality before the Laws (all citizens to be equally subject to all Laws, administered by ordinary
courts)
 Primacy of rights of individual: constitution is the result of individual rights, not the source. In
India, Constitution is the source of rights
 Rule of Law is a basic feature of the Constitution
 EXCEPTIONS TO EQUALITY
 Article 361: President and Governors of India enjoy certain immunities Like
a) There can be no criminal proceedings, no process for arrest or imprisonment, no civil
proceedings etc against them while they hold office
b) They are not answerable to courts for exercises and performance of the powers and duties of
their offices.
 Article 361-A: freedom from civil/criminal proceedings for publication in a newspaper/TC/Radio a
substantially true report of any proceedings of LS/RS or state Legislative assemblies/councils
 Article 105: No proceedings against MP's for what they say or how they vote in Parliament
 Article 194: No proceedings against MLA's for what they say or how they vote in State Legislative
Assemblies/Councils

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 Article 31-C: Laws made to give effect to DPSPs under the following articles cannot be challenged
for being violative of Article 14
a) Article 39(b): the quotable distribution of material resources of the community for the common
good
b) Article 39(c): prevention of concentration of wealth and means of production.
 Foreign rules, ambassadors, diplomats have immunity from criminal and civil proceedings
 UNO and its agencies have diplomatic immunity.
II. Article 15: PROHIBITION OF DISCRIMINATION
 State shall not discriminate against any citizen only on grounds of religion, race, caste, sex or place
of birth
 Discriminate: to distinguish unfavourably from others
 No citizen shall be subjected to any disbarility, Liability, restriction or condition on grounds only of
religion, race, caste, sec or place of birth with regard to
 Access to shops, public restraints, hotels and places of public entertainments
 The use of wells, talks, bathing Ghats, roads places of public resort dedicated to the use of general
public or maintained wholly or partially by the state
 Thus, under the second provision, discrimination by both the state and private individuals is
prohibited
 Exceptions to non-discrimination :
 Special provisions for women and children
 Special provisions for the advancement of socially and educational backward classes of citizens or
for SCs and STs. For e.g.: Reservation of seats or fee concessions in public educational institutions
 Special provisions for the advancement of socially and educational backward classes of citizens or
for SCs and STs regarding their admission to educational institutional, aided or unaided by the state,
except minority educational institutions (93rd CA 2005)
a) Centre enacted the Central Educational Institutions (Reservation in Admission) Act 2006 to give
27% quota to OBCs
b) 2008: SC directed the central government to exclude the creamy layer of OBCs while
implementing the law
III. Article 16: EQUALITY OF OPPORTUNITY IN PUBLIC EMPLOYMENT
 Equality of opportunity for all citizens in matter of public employment or appointment to any office
under the State.
 Citizens cannot be discriminated against on the grounds of only religion, race, caste, sex, descent,
place of birth, or residence
 Exceptions:
 Parliament can prescribe residence as a condition for some employments or appointments
 Provision as of now only for Andhra Pradesh
 Reservation in favour of backward classes
 Requirement that the incumbent of an office related to religious or denominational institution or a
member of its governing body should belong to the relevant religion
 MANDAL COMMISSION (Indra Sawhney v/s Union of India)
 1979: Morarji Desai government appointed the Second Backward Classes Commission under BP
Mandal, an MP
 Article 340: Parliament can set up a commission to investigate the conditions of the socially and
educationally backward classes. Suggest measures for their advancement
 1980: Mandal Commission report
a) Identified 3743 castes as socially and educationally backward
b) Constituting 52% of the population, excluding SCs and STs
c) Recommended 27% reservation so that total reservation stays 50%
 1990: VP Singh Government declared reservation of 27% of government jobs for 0BCs
 1991: Narsimha Rao government introduced two changes
a) Creamy layer clause: preference to the poorer sections among the 0BCs
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b) 10% reservation for poorer sections of the high castes


 1992: It was challenged in SC and known as famous Mandal case
a) Determined the extent of scope of Article 16(4)
b) SC rejected the 10% reservation for poorer sections of the high castes and said no reservations in
promotions
c) Creamy Layer to be excluded from reservation
d) Total reserved quota should not normally exceed 50%
e) A permanent statutory body should be created to examine complaints of over- and under-
inclusion in the 0BC List.
 Governments response on above SC rulings :
a) Ram Nandan Committee to identify the creamy Layer. Report in 1993, accepted
b) National Commission for Backward Classes established 1993. Bill considering its elevation to a
Constitutional Body
c) 77th CA 1995 and 85th CA 2001 creates conditions for promotions on the basis of reservations
d) 81st CA 2000; ends the 50% ceiling on reservation in backlog vacancies. State can consider the
unfilled reserved vacancies of a year as a separate class of vacancies to be filled in any succeeding
year.
e) 76th CA 1994: TN Reservation Act of 1994 placed in the 9th schedule (to protect it from judicial
review). Provides for 69% reservation for exceeding the 50% ceiling
IV. Article 17: ABOLITION OF UNTOUCHABILITY
 Abolished untouchability
 Exception to Secularism
 Its practice in any form
 Forbids enforcement of any disability that arises out of untouchability
 Untouchability offences (Act) 1955, was renamed and updated in 1976 as the Protection of Civil
Rights Act 1955
 Civil Rights: any right accruing to a person by reason of the abolition of untouchability
 Term 'untouchability' not defined either in Constitution or in Act
 Mysore High Court: Untouchability in Article 17 does not mean untouchability literally
a) Means the practice of untouchability as it developed historically in the country
b) The social disabilities imposed on persons due to their birth in a certain caste
c) Does not cover the boycott of a few individuals
d) A person convicted of untouchability is disqualified for election to the Parliament or state
legislature
e) Article 17 is available against private individuals and it is the constitutional obligation of the state
to take necessary action to ensure that this right is not violated.
 Offences under the Protection of Civil Rights Act 1955
a) Preventing any person from entering a place of public worship or from worshipping inside it
b) Justifying or preaching untouchability
c) Denying access to any shop, hotel or places of public entertainment
d) Insulting a person belonging to a SC on the grounds of untouchability
e) Refusing admission in hospitals, educational institutions or hostels established for public benefit
f) Refusing to sell goods or render services to any person
V. Article 18:ABOLITION OF TITLES
 Prohibits the state from conferring titles on an person, except military and academic titles
 Prohibits Indian citizens from accepting titles
 A foreigner holding an office of profit or trust under the Indian state cannot accept any titles from
foreign governments without the consent of the President
 No person or foreigner holding an office of profit of trust under the state can accept any present,
emolument or office from a foreign state without the consent of the President
 Thus Article 18 protects the concept of equal status of all
 Exceptions:

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1. 1954: National Awards instituted


a) Bharat Ratna, Padma Vibhushan, Padma Bhushan. And Padma Sri
b) Janata Party government discontinued them in 1977
c) Indira Gandhi government revised them in 1980
2. 1996: SC upheld their constitutional validity
a) Ruled that Article 18 only prohibits hereditary tiles of nobility like Maharaja, Raja, etc.
b) But the national awards should not be used a suffixes or prefixes to names of awardees
RIGHT TO FREEDOM: ARTICLE 19-22
Article 19: Protection of six freedoms
i. Right to freedom of speech and expression
ii. Right to assemble peaceably and without arms
iii. Right to form associations or unions or cooperative societies
iv. Right to move freely throughout the territory of India
v. Right to reside and settle in any part of the any territory of India
vi. Right to practice any profession or to carry on occupation, trade or business
19 (i): FREEDOM OF SPEECH AND EXPRESSION
 Every citizen has the right to express her views opinions, convictions and beliefs freely by word of
mouth, writing, printing, picturing or any other form.
 Many other dimensions have been read into it by the SC
 E.g.: Right against tapping of telephonic conversation
 Freedom of press
 Right to know about government activities
 Freedom of silence
 Right to demonstration and picketing, but not right to strike
 Reasonable restrictions: Sovereignty and integrity of India, security of the state, friendly relations with
foreign states, public order, decency or morality, contempt of court, defamation, incitement to an
offence
19 (ii): FREEDOM OF ASSEMBLY
 Every citizen has the right to assemble peaceably, without arms, on public Land
 Includes right to hold public meetings, demonstrations and take out processions
 Right to strike not included
 Reasonable restrictions:
 Sovereignty and integrity of India
 Public Order (including maintenance of traffic)
 Section 144 CrPC (Criminal Procedure Code) of 1973
 A magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction,
annoyance
 Section 141 IPC
 An assembly of 5 or more persons is unlawful if the purpose is
a) To resist execution of any Laws or legal process
b) To forcibly occupy the property of some person
c) To commit any mischief or criminal trespass
d) To force someone to do an illegal act
e) To threaten the government or its officials in exercising its Lawful powers
19 (iii): FREEDOM OF ASSOCIATION
 All Citizens have the right to form associations or unions or co-operative societies
 They also have the right to not form or join an association or union (negative right)
 The right to obtain recognition of the association is not a fundamental right
 Right to effective bargaining, right to strike or right to declare a lock out are not fundamental rights,
 Reasonable restrictions: Sovereignty and Integrity of India; Public order and Morality

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 Subject to these restrictions, the citizens have complete liberty to form associations or unions for
pursuing lawful objectives and purposes. However, the right to obtain recognition is not a FR
 SC held that the trade unions have no guaranteed right to effective bargaining or right to strike or right
to declare a lock-out. The right to strike can be controlled by an appropriate industrial law.
19 (iv): FREEDOM OF MOVEMENT
 Every citizen is entitled to move freely throughout the country
 India is one whole unit for its citizens
 This right promotes the feeling of nationalism
 Only covers the right to move around in India (internal movement) is covered under Article 19
 Right to move out of India and the right to come back (external movement) is covered under Article
21.
 Reasonable restrictions:
 Interests of general public
 Interests of any scheduled tribe
a) Entry in tribal areas is restricted to protect the distinctive culture, Language, customs and
manners of scheduled tribes and to safeguard their traditional vocations and properties against
exploitation
 SC :freedom of movement of prostitutes can be restructured on grounds of public health and the
interests of general public
 Bombay HC: movement of persons affected by AIDS can be restricted
19 (v): FREEDOM OF RESIDENCE
 Citizens have the right to reside (Live temporarily) and settle (Live permanently) in any part of the
country
 Removes internal barriers in the country, promotes nationalism and circumvents narrow mindedness.
 Reasonable restrictions:
 Interest of general public
 Interest of any scheduled tribe
 In some parts, tribals regulate their property in accordance with their customs
 SC: certain areas can be banned for certain kinds of persons
 Habitual offenders, prostitutes etc
 From the above, it is clear that the right to residence and right to movement are overlapping to some
extent. Both are contemporary to each other.
19 (vi): FREEDOM OF PROFESSION:
 Citizens have the right to practice any profession or to carry on any occupation, trade or business
 Reasonable restriction: interest of general public
 State can also prescribe technical/professional qualification
 State can carry on any trade, business, industry or service itself, to the exclusion of citizens or
otherwise.
 The State does not have to justify its monopoly
 Citizens do not have the right to carry out professions/trade/business/occupation which is
immoral or dangerous.
 State can prohibit or regulate these through licensing.
ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION OF OFFENCES
 Article 20: protection against arbitrary and excessive punishment
 Available to all persons
 Three provisions:
i. No ex-post-facto law:
 Ex-post-facto law imposes penalties retrospectively
 No conviction except for violation of a laws in force at the time the act was done
 No penalty greater than prescribed by Laws at the time the act was done

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 Applicable only to criminal Laws, not civil Laws


 Protection under this provision cannot be claimed in case of preventive detention
ii. No double jeopardy:
 No person can be prosecuted and punished for the same offence twice
 Protection available only before a court of law or a judicial tribunal
 Not available before departmental proceedings or administrative authorities
iii. No self-incrimination:
 No accused will have to be a witness against herself
 Protection available for oral evidence and documentary evidence
 Does not extend to
 Compulsory production of material objects
 Compulsion to give thumb impression, specimen signature, blood specimens etc
 Compulsory exhibition of the body
 Available only for criminal proceedings
ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY
 Article 21: No person shall be deprived of her life or personal Liberty except according to the
procedure established by Law
 In 1950: Gopalan case
 SC took narrow interpretation of Article 21
 SC said protection available only against arbitrary executive
 The state can deprive the right to Life and personal Liberty
 The validity of a law cannot be questioned (procedure established by law, not the due process of
law) on the ground that law is unreasonable, unfair or unjust
 Personal liberty means only liberty of the body of the individual.
 In 1978: Menaka Case
 SC took a wider interpretation
 Introduced the American concept of due process of Law
 It decided the following rights as part of Article 21:
a) The 'right to life, is not just the right to animalesque survival, but the right to live with human
dignity.
b) It means the right to live a complete, meaningful life worth living
c) The term Personal Liberty has a wide connotation
d) The SC has since read many rights into the right to personal Liberty clause i.e. right to sleep,
shelter, health, etc.
Article 21A: RIGHT TO EDUCATION
 Article 21 A declares that State shall provide free and compulsory education to all children aged 6-14
years
 Added by the 86th CA 2002
 Earlier this was a DPSP under Article 45. So not enforceable by the court.
 Also added as the new FD under Article 51-A.
Article 22: PROTECTION AGAINST ARREST AND DETENTION
 Grants protection to persons who are arrested or detained
 Has two parts: punitive detention and preventive detention
 Punitive detention: after trial and conviction
 Preventive detention: without trial and conviction
 Thus Article 22 has two parts:
 First part deals with punitive detention cases of ordinary law
 Second part deals with cases of preventive detention law
 Under the ordinary Law cases, citizens have the right
 To be informed of the grounds of arrest and Right to consult and be defended by legal practitioner

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 Right to be produced before a magistrate within 24 hours, unless the magistrate authorises further
detention
 Article 22 covers only criminal and quasi-criminal acts, or activity prejudicial to public interest
 Does not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax,
and deportation of an alien
 Under the preventive detention cases, all persons have the following rights
 Detention cannot exceed 3 months unless extended by an advisory board that reports sufficient
cause for extension and Board to consist of HC judges
 Grounds of detention to be communicated to the detenu
 Not necessary if it is against public interest to disclose grounds
 Detenu should be afforded an opportunity to make a representation against the detention order
 Article 22 authorises the Parliament to prescribe the cases under which a person can be detained for
more than three months under preventive detention law without the opinion of an advisory board
 Parliament can decide the maximum period of detention under preventive detention law
 44th CA 1978 has reduced this period to two months, but this provision has not been enforced yet
 The procedure to be followed by an advisory board in an inquiry
 Parliament makes preventive detention laws for reasons connected with defence, foreign affairs and
the security of India.
 Parliament and state legislature can both make laws regarding preventive detention for security of the
state, the maintenance of public order and the maintenance of supplies and services essential to the
community.
 India is the only democratic country with preventive detention as an integral part of the constitution.
RIGHT AGAINST EXPLOITATION
I. ARTICLE 23: PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR
 Prohibition of traffic in human beings and forced Labour (begar)
 Contravention shall be punishable by Law
 Available to citizens and non-citizens
 Available against the State and private persons
 Traffic in human beings means
 Selling and buying of humans Like goods
 Immoral traffic in women and children including Prostitution
 Devadasis
 Slavery
 To prevent this, Parliament enacted the Immoral Traffic (Prevention) Act 1956
 Begar means compulsory work without remuneration
 Article 23 also prohibits similar forms of forced Labour Like bonded Labour
 ‘Forced Labour': compelling someone to work against his will
 Force means Physical or legal force
 Compulsion from economic circumstances, like working for less than minimum wage
 Parliament has enacted many Laws to uphold Article 23.
 Exception to Article 23: State can impose compulsory service for public purposes
 Like military or social service
 State is not bound to pay for this
 In imposing compulsory service, the State cannot make discrimination on the grounds only of
religion, race, caste or class.
II. ARTICLE 24: PROHIBITION OF EMPLOYMENT OF CHILDREN
 Prohibits employment of children below age of 14 years in any factory, mine or other hazardous
activities
 Does not prohibit their employment in innocent or harmless work
 To enforce this FR, the Parliament enacted the Child Labour (Prohibition and Regulations) Act in 1986

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 Many other Acts also uphold Article 24 i.e. The Employment of children Act, 1938; The Factories Act,
1948; The Mines Act, 1952; The Merchant Shipping Act, 1958; etc.
 In 1996: SC mandated the establishment of Child Labour Rehabilitation Welfare Fund
 Offending employer has to deposit Rs. 20,000 fine for each child employed by him
 Commissions for Protection of Child Rights Act 2005
 Establishes a National Commission and State Commissions for Protection of Child Rights and
Children's Courts
 Children's Courts provide for speedy trials against offences of violating child rights or otherwise
involving children
 Child Labour (Prohibition and Regulation) Amendment Act 2016:
 Prohibits employment of children below 14 in all occupations and processes
 Earlier, 18 occupation, 65 processes
 Also prohibits employment of adolescents (14-18 ages) in certain hazardous occupations and
processes
 It provides for a more stringent punishment for offenders
 It provides for a more stringent punishment for offenders. It is an imprisonment of 6 months to
2yrs, or a fine of Rs. 20,000 to Rs. 50,000.
RIGHT TO FREEDOM OF RELIGION
I. ARTICLE 25: FREEDOM OF CONSCIENCE AND FREE PROFESSION, PRACTICE AND PROPAGATION OF
RELIGION
 All persons have the right to freedom of conscience, and the right to freely profess, practice and
propagate religion
 Freedom of conscience: inner freedom to every individual to freely shape her relationship God or
spirituality in the way she desires
 Right to profess: to declare ones religious beliefs and faith openly
 Right to practice: to perform religious rituals, worship ceremonies etc
 Right to propagate: to transmit and share religious ideas and belies.
 Does not include the right to proselytise, as forcible conversion impinges on freedom on conscience
 Available to all persons
 Covers religious beliefs (doctrines) and practices (rituals)
 Article 25 also contains two explanations:
 One: Wearing and carrying of Kirpans is to be included in the profession of Sikh religion
 Two: The Hindus in the context, include Sikhs, Jains and Buddhists.
II. ARTICLE 26: FREEDOM TO MANAGE RELIGIOUS AFFAIRS
 Every religious denomination or its sections has the freedom to manage its own affairs
 It can establish and maintain institutions for religions and charitable purposes
 It can own and acquire movable and immovable property
 It has the right to administer such property in accordance with laws
 Article 25: individual rights
 Article 26: rights of denominations and sections
 Reasonable restrictions: public order, morality and health
 Not subject to other provisions relating to FRs
 What is a religious denomination?
 SC: a collection of individuals with a system of beliefs which they regard as conducive to their
spiritual well-being
 Common organisation
 Distinctive Name
 All three conditions should be satisfied for classification as a denomination
III. ARTICLE 27: FREEDOM FROM TAXATION FOR PROMOTION OF A RELIGION
 No person shall be compelled to pay taxes for the promotion or maintenance of any particular religion
or religious denomination
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 The State cannot spend public money on promoting/ maintaining any religion
 But taxes can be used for the promotion/maintenance of all religions
 Thus, the State cannot patronise one religion over the other
 Only prohibits taxes, not levy or fees
 Fees is collected for the secular administration of religious institutions, not promotion/maintenance
IV. ARTICLE 28: FREEDOM FROM ATTENDING RELIGIOUS INSTRUCTION IN SCHOOLS
 No religious instruction shall be provided in an educational institution wholly maintained out of State
funds Not applicable to educational institutions administered by the State, but established under any
endowment or trust which require the imparting of religious instruction
 If persons attend educational institutions recognised or funded by the State, they shall not be required
to attend any religious instruction without their consent
 Guardians consent in case of a minor
 Article 28 distinguishes between four kinds of educational institutions
 Institutions wholly maintained out of State funds: No religious instruction is permitted
 Institutions administered by the Stabe but established under any endowment or trust: Religious
instruction is permitted
 Institutions recognised by the State: Religious instruction is permitted on a voluntary basis
 Institutions receiving aid from the State: Religious instruction is permitted on a voluntary basis
CULTURAL AND EDUCATIONAL RIGHTS
I. ARTICLE 29: PROTECTION OF INTERESTS OF MINORITIES
 Any section of citizens of India have a right to conserve their distinct language, script and culture
 Protects group rights
 No citizen can be denied admission into any educational institution maintained by the state or
receiving aid from the State on grounds only of religion, race, caste or Language
 Protects individual rights
 Protects religious and Linguistic minorities
 SC: Section of citizens can mean majority also
 Right to conserve a Language includes the right to agitate for protection of a Language
 Political speeches for conservation of language are not corrupt practices under the Representation
of People Act (RPA), 1951
II. ARTICLE 30: RIGHTS OF MINORITIES TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS
 Grants rights to linguistic and religious minorities
 Right to establish and administer educational institutions of their choice o Compensation by the
State for acquisition of their property (44th A 1978)
 Non-discrimination by the State when granting aid to educational institutions managed by
minorities
 Article 30 does not extend to 'section of citizens' only minorities
 The term minority, has not been defined in the Constitution
 Minorities have the right to impart education to their children in their own Language
 There are 3 kinds of minority educational institutions
 Those that seek recognition and aid from the state
 Those that seek only recognition from the State, not aid
 Those that seek neither recognition nor aid from the State
 The first two can be regulated by the state with regard to syllabus, academic standards etc
 The last type is free to administer its own affairs, subject to general laws
ARTICLE 32: RIGHT TO CONSTITUTIONAL REMEDIES
 Right to remedies for the enforcement of the fundamental rights of an aggrieved citizen
 The right to get Fundamental Rights protected is protected itself as a fundamental right
 This makes fundamental rights potent
 Ambedkar: Article 32 is the heart and should of the Constitution/ the most important article

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 SC: a basic feature. Hence, cannot be abridged or taken away even by the way of an amendment to the
constitution.
 Provisions under Article 32:
 Right to move to SC for enforcement of FRs
 SC can issue writs to enforce FRs
 Parliament can empower other courts to issues directions, order and writs
a) Without prejudice to the powers conferred on the SC
b) Does not apply to HCs, as they already have this pouser under Article 226
 Right to move to SC shall not be suspended except as otherwise provided for by the Constitution
a) President can suspend it during a national emergency
 Thus, SC given position of the defender and guarantor of the fundamental rights of the citizens. It has
original and wide powers for this
 Purpose of Article 32: effective remedy against the violation of FRs
 Can only enforce FRs guaranteed by the Constitution, and not any other rights
 To enforce FRs, jurisdiction of the SC is original but not exclusive
 HCs can also enforce FRs, but citizens can move directly to the SC
 However, SC has ruled that where relief through HC is possible, aggrieved party should first move
to an HC
WHAT ARE WRITS?
 A form of written command in the name of a court or other Legal authority to act, or abstain from
acting, in a particular way
 Borrowed from English Law: known as prejorative writs
 Extraordinary remedies to uphold rights and Liberties of British people
 Writs of habeas corpus, certiorari, mandamus, quo warranto and prohibition can be issued by Indian
SC and HCs
POWER OF COURTS TO ISSUE WRITS:
 SC: Article 32
 HCs: Article 226
 Article 32: Parliament can empower any other court to issue writs, No such provision made yet.
 Difference between writ jurisdictions of SC and HCs:
1. SC: only for enforcement of FRs and HC: for FRs and ordinary legal rights
2. SC: against persons/government throughout the territory o India and HC: against
persons/government within its territorial jurisdiction
a) Only outside if the cause of action arises within its territorial jurisdictiovn
3. SC cannot refuse to exercise its writ jurisdiction as remedy under Article 32 is a FR and HC: writ
jurisdiction is discretionary
HABEAS CORPUS
 Latin term: to have the body of
 Order by a court to a person who has detained another person, to produce the body of the Latter
before it
 Court then examines legality and cause of detention
 This writ is a bulwark of individual Liberty against arbitrary detention
 Can be issued against public authorities and private individuals
 Not issued if the detention is lawful, proceeding is or contempt of a legislature of a court, detention is
by a competent court and if the detention is outside the jurisdiction of the court. .
PROHIBITION
 Means to forbid
 Issued by a higher court to a lower court or tribunal
 Prevents lower courts/tribunals from exceeding jurisdiction or usurping a jurisdiction that it does not
possess Directs inactivity (unlike mandamus, which directs activity)

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 Not available against administrative authorities, legislative bodies and private individuals or bodies
CERTIORARI
 Means to be certified, or to be informed
 Issued by a higher court to a Lower court, tribunal or against administrative authorities affecting the
rights of individuals
 But not against legislative bodies and private individuals or bodies
 Issued if there is a Lack or excess of jurisdiction, or an error of Laws
 The Court issuing the writ can transfer a case pending with the lower court/tribunal to itself, or
squash the order of the latter in a case
 The writs of certiorari is both preventive and curative, unlike Prohibition, which is only preventive
MANDAMUS
 It means “we command”
 Issued by a court
 To a public official asking him to perform his official duties that he has failed to or refused to perform
or against a public body corporation, an inferior court, a tribunal or government, for the same purpose
 Cannot be issued
 Against a private individual or body
 To enforce departmental instructions without statutes force
 For discretionary duties
 To enforce contractual obligations
 Against the President of India or state governors
 Against the Chief Justice of a high court acting in judicial capacity
QUO-WARRANTO
 It means “by what authority or warrant”
 Issued by a court to inquire into the legality of claim of a person to a public office
 Prevents illegal usurpation of public office by a person
 Cannot be issued against ministerial or private offices, only against substantive public office of a
permanent character created by a law or the Constitution
 Can be sought by any interested person, and not necessarily by the aggrieved person. All other writs
require locus standi
ARMED FORCES AND FR
 Article 33: Parliament can restrict or abrogate the FR of members of the armed forced, para-military
forces, police forces, intelligence agencies and analogous forces
 To ensure the proper discharge of their duties
 Maintenance of discipline
 Only Parliament can make such a law
 Laws cannot be challenged in court on grounds of contravention of FR
 Such Laws can cover non-combatant employees of armed forces like barbers, cooks etc.
 Laws can exclude court martials from the writ jurisdiction of the SC and HC as far as enforcement of FR
is concerned
MARTIAL LAW AND FR
 Article 34
 Restrictions on FR while martial law is enforced in any area of India
 Parliament can indemnify any government servant or any other person for any act does by her in
connection with the maintenance or restoration of order where martial Law was enforced.
 Parliament can validate any sentence passed, punishment inflicted, forfeiture ordered or other act
done under martial laws in such area
 Martial Law is not defined in the Constitution
 Not even explicitly provided for, Only implicitly through Article 34.

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MARTIAL LAW
 Literally means military rule
 Concept from English common laws
 Not explicitly defined in the Constitution
 Implicitly provided for by Article 34
 Martial Law refers to a situation where civil administration is run by the military
 According to military rules and regulations, outside of ordinary Laws
 Military tribunals suspend ordinary laws and the government
 Imposed under extraordinary circumstances Like war invasion, insurrection, rebellion, riot or violent
resistance
 It aims to repel force by force to maintain and restore order to society
 Military authorities are vested with abnormal powers to take all necessary steps
 Impose restrictions and regulations on the rights of civilians, can punish civilians and even meet out
capital punishment.
 SC: Declaration of martial Law does not automatically mean the suspension of the writ of habeas
corpus
DIFFERENCE BETWEEN MARTIAL LAW AND NATIONAL EMERGENCY
MARTIAL LAW NATIONAL EMERGENCY
Affects only FR Affects FR, Centre-State relations, etc
Suspends the government and ordinary Law Continues with government and ordinary Laws
Imposed to restore the breakdown of law Can be imposed on only 3 grounds: war, armed
rebellion and external aggression and order due to
any reason
Imposed in a specific area of the country Imposed on the whole country or a part of it
No explicit/ specific Constitutional provisions It is Explicit, specific, detailed provisions in the
implicit Constitution

ARTICLE 35
 Effecting certain fundamental rights:
 The powers to makes laws, to give effect to certain specified FRs shall vest only in the Parliament
and not in the State legislatures.
 Ensure uniformity throughout India with regard to those FRs and punishment for themThese FRs
are:
 Article 16: prescribing residence as a condition for certain employments or appointments in a state
or UT or Local authority or other authority
 Article 32: empowering courts other than the SC and HCs to issue directions, orders and writes of all
kinds for the enforcement of FRs
 Article 33: Restricting or abrogating the application of FRs to members of the armed forces, police
forces, etc.
 Article 34: Indemnifying any government servant or any other person for any act done during the
operation of martial Law in any area
 Only Parliament, and not state legislatures, can prescribe punishments for those acts that are declare
to be offences under the FRS:
 Article 17: Untouchability
 Article 23: traffic in human beings and forced Labour
 Parliament has to enact Laws on these FRS
 Some of these matters may be in the State List, but Article 35 extends the competence of the
Parliament to make a laws on it anyway
Exceptions to FRs : Article 31A, Article 31B & Article 31C
ARTICLE 31A

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 Saves five categories of Laws from beings challenged and invalidated on the ground of contravention
of FRs conferred by Article 14 and Article 19.
 Concerning agricultural lands reforms, industry and commerce. These are:
 Acquisition of estates and related rights by the state
 Taking over the managements of properties by the State
 Amalgamation of corporations
 Extinguishment or modification of rights of directors or shareholders of corporations
 Extinguishment or modification of mining leases.
 Article 31A does not immunise a state from judicial review unless an Act under it has been reserved for
the President's consideration and has received her assent.
 Compensation has to be paid at market value when the state acquires that land held by a person
under her personal cultivation, and the land is within the statutory ceiling Limit.
ARTICLE 31B
 Saves acts and regulations in the 9th Schedule from being challenged and invalidated on grounds of
contravention of FRs.
 Scope of Article 31B is wider than that of Article 31A.
 Jan 2007 SC: there cannot be any blanket immunity from Judicial review
 Judicial review under the 9th Schedule is a part of the basic structure of the Constitution
 Laws put under the 9th Schedule after April 24, 1973 are open to challenge in court
 The Laws included in the 9th Schedule have expanded hugely from 13 acts in 1951 to over 280 now.
 The state acts deal with Land reforms and abolition of the zamindari system.
 The Parliamentary acts deal with other matters.
ARTICLE 31C
 Inserted by 25th CA 1971
 No Law that seeks to implement that socialistic DPSPs of Article 39(b) and 39(c) shall be void on the
contravention of FRs under Article 14, or 19.
 No Law containing a declaration that it is for giving effect to such policy shall be questioned on the
ground that it does not give effect to such policy. (Struck down in the Keshavananda Bharati case as
unconstitutional and invalid. Judicial review is basic structure)
 Article 39(b): The State shall direct its policy towards securing that the ownership and control of the
material resources of the community are so distributed as best to sub serve common good
 Article 39(c): The State shall direct its policy towards securing the operation of the economic system
does not result in that concentration of wealth and means of production to the common detriment.
 42nd CA 1976 tried to extend the first part of the article to include all DPSPs and not just Article 39 b
and c.
 Struck down by the Minerva Mills case (1980)
CRITICISM OF FR
 Excessive Limitations
 No social and economic rights
 No clarity: vague phrases used
 Important terms like 'minorities' not defined
 No permanency: The judicially innovated doctrine of basic structure' is the only Limitation on the
authority of the Parliament to curtail or abolish FRs
 Suspension during emergency
 Expensive remedy
 Preventive detention: 'the constitution of India deals more with the rights of the State against the
individual than with the rights of the individual against the state'
 No consistent Philosophy: created a difficultly for the judiciary in interpreting FRs.

RIGHTS OUTSIDE PART III


 'Constitutional rights' or legal rights' or non-fundamental rights'
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 Article 265: No tax shall be levied or collected except by authority of Law. (Part XII)
 Article 300A: No person shall be deprived of his property save by authority of Law. (Part XII)
 Article 301: Trade, commerce and intercourse throughout the territory of India shall be free. (Part XIII)
 Article 326: The elections to the LS and the State Legislative Assembly shall be on the basis of adult
suffrage(Part XV)

PYQs
PRELIMS 2017 8. Which one of the following statements is correct?
(a) Rights are claims of the State against the citizens
(b) Rights are privileges which are incorporated in the Constitution of a State
(c) Rights are claims of the citizens against the State
(d) Rights are privileges of a few citizens against the many.
PRELIMS 2017 Right to vote and to be elected in India is a
(a) Fundamental Right (b) Natural Right
(c) Constitutional Right (d) Legal Right
REASON: Article 326 of the Constitution provides for universal adult suffrage, but does not specifically
mention the right to vote. Rights that are not explicitly set out in the Constitution, such as the right to privacy,
have routinely been impliedly read into the text. But the court has refused to categorically recognise the right
to vote as an inalienable constitutional right, frequently holding that it is a privilege that can be taken away as
easily as it is granted.
PRELIMS 2017 47. In the context of India, which one of the following is the correct relationship between
Rights and Duties?
(a) Rights are correlative with Duties.
(b) Rights are personal and hence independent of society and Duties.
(c) Rights, not Duties, are important for the advancement of the personality of the citizen
(d) Duties, not Rights, are important for the stability of the State
PRELIMS 2017 Which of the following are envisaged by the Right against Exploitation in the Constitution of
India?
1. Prohibition of traffic in human beings and forced labour
2. Abolition of Untouchability
3. Protection of the interests of minorities
4. Prohibition of employment of children in factories and mines
Select the correct answer using the code given below.
(a) 1, 2 and 4 only
(b) 2, 3 and 4 only
(c) 1 and 4
(d) 1, 2, 3 and 4
MAINS QUESTIONS
2017: Examine the scope of Fundamental Rights in the light of the latest judgement of the SC om Right to
Privacy.
2014: What do you understand by the concept “Freedom of Speech and Expression”? Does it cover hate
speech also? Why do the films in India stand on a slightly different plane from other forms of expression?
Discuss.

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INDIAN POLITY: M.LAXMIKANT


CHAPTER-8
(DIRECTIVE PRINCIPLE OF STATE POLICY)
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DIRECTIVE PRINCIPLES OF STATE POLICY
 Sir BN. Rao: Constitutional Advisor to the Constituent Assembly
 Recommended two categories for individual rights
 Justiciable and non-justiciable
 Justiciable: FR
 Non-justiciable: DPSPs
 Part IV
 Articles 36-51
 Idea from the Irish Constitution (which borrowed from the Spanish Constitution)
 Resemble the Instrument of Instructions of the GoI Act 1935
 BR Ambedkar: DPSPs are a novel feature" of our Constitution
 Conscience of the Constitution
 DPSP+FR = soul of the Constitution, contains the philosophy of the Constitution
 SC: "The Indian Constitution is founded on the bedrock of the balance between the Fundamental
Rights and the Directive Principles... This harmony and balance between the two is an essential
feature of the basic structure of the Constitution" (Minerva Mills case, 1980)
 Article 36: Definition of state (same as definition under Article 12)
 Article 37: DPSPs are fundamental in the governance of the country
 It is the duty of the State to apply DPSPs while making laws
 This implies that there is a moral obligation on the state to apply DPSP
 Ambedkar: public opinion will force governments to abide by DPSPs
 DPSPs work to establish economic and social democracy.
 Aim at achieving justice, equality and fraternity
 Express the concept of welfare state
 Non-justiciable
 Courts use DPSP's to determine the constitutional validity of a Laws
 Scholars have categorised them as socialist, Gandhian and Liberal- intellectual Directives,
WHY ARE THEY NON-JUSTICIABLE?
 At the time of independence, finances to implement DPSPs weren’t there
 Diversity and backwardness can make their implementation problematic (E.g.: UCC)
 Newly born India would be too heavily burdened by the responsibility of implementing DPSPs
 Thus, pragmatic to keep them non-justiciable
DIFFERENCES BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY
SR. FUNDAMENTAL RIGHTS DPSP’S
NO.
1. Negative: Prohibits the state from actions Positive: Compel the state towards certain actions
2. Justiciable Non-Justiciable
3. Establish political democracy Establish socio-economic democracy
4. Have legal sanctions Have moral and political sanctions
5. Individual oriented Community oriented
6. Don’t require legislation for implementation Require legislation for implementation
7. Laws violative of FR have to be declared void A law cannot be declared void for violating a DPSP.
by courts Law can be upheld for promoting DPSPs

LIST OF DIRECTIVE PRINCIPLES OF STATE POLICY (DPSPS)

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 ARTICLES 38:
 To promote welfare of the people by securing a social order permeated by justice- social,
economic and political
 To minimise inequalities in income, status, facilities and opportunities (added by 44th CA 1978)
 ARTICLES 39: To secure
 The right to adequate means of Livelihood for all citizens
 Equitable distribution of material resources of the community for the common good
 Prevention of concentration of wealth and means of production
 Equal pay for equal work for men and women
 Preservation of health and strength of workers and children against forcible abuse
 Opportunities for healthy development of children (Added by 42nd CA 1976)
 ARTICLES 39A:
 To promote equal justice
 Provide free legal aid to the poor (Added by 42nd CA 1976)
 ARTICLES 40: To organise village panchayats and endow them with necessary powers and authority
to enable them to function as units of self-government
 ARTICLES 41: To secure the right to work, to education, and to public assistance in cases of
unemployment, old age, sickness and disablement
 ARTICLES 42: To make provision for just and humane conditions of work and maternity relief
 ARTICLES 43:
 To secure a Living wage, a decent standard of life and social and cultural opportunities for all
workers
 To promote cottage industries on an individual or cooperation bases in rural areas
 Minimum wage: bare needs Like food, shelter, clothing
 Living wage: minimum wage + education, health, insurance etc
 Fair wage: between Minimum wage and Living wage
 ARTICLE 43A:
 To take steps to secure the participation of workers in the management of industries(Added by
42nd CA 1976)
 To raise the level of nutrition and the standard of living of people and to improve the public
health
 ARTICLES 43B: To promote voluntary formation, autonomous functioning democratic control and
professional management of cooperative societies (Added by 97th CA 2011)
 ARTICLES 44: To secure for all citizens a uniform civil code throughout the country
 ARTICLES 45:
 To provide early childhood care and education for all children until they complete the age of six
years
 86th CA 2002 change the text to "until the age of six years" Originally, provision for free and
compulsory education for all children until they complete age of 14 years.
 Made elementary education a fundamental right
 ARTICLES 46: To promote the educational and economic interests of SCs, STs and other weaker
sections of the society and to protect them from social injustice and exploitation
 ARTICLES 47:
 To raise the level of nutrition and the standard of Living of people and to improve public health
 To prohibit the consumption of intoxicating drinks and drugs which are injurious to health
 ARTICLES 48:

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 To prohibit the slaughter of cows, calves and other mulch and draught cattle and to improve
their breeds
 To organise agriculture and animal husbandry on modern and scientific Lines
 ARTICLES 48A: To protect and improve the environment and to safeguard forests and wildlife Added
by 42nd CA 1976
 ARTICLES 49: To protect monuments, places and objects of artistic or historic interest which are
declared to be of national importance
 ARTICLES 50: To separate the judicial from the executive in the public services of the state
 ARTICLES 51:
 To promote international peace and security and maintain just and honourable relations between
nations
 To foster respect for international Laws and treaty obligations
 To encourage settlement of international disputes by arbitration
CLASSIFICATION OF DPSPS
a) SOCIALIST PRINCIPLE: These principles reflect the ideology of socialism. They lay down the
framework of a democratic socialist state, aim at providing social and economic justice, and set the
path towards welfare state.
b) GANDHIAN: These principles are based on Gandhian ideology. They represent the programme of
reconstruction enunciated by Gandhi during the national movement. In order to fulfil the dreams of
Gandhi, some of the ideas were included as Directive Principles
c) LIBERAL INTELLECTUAL: The principles included in this category represent the ideology of Liberalism.
They direct the state by Articles 44, 45, 48, 48A, 49, 50, 51.
ARTICLE KEYWORD CLASSIFICATION
38 Welfare of people, justice, equality SOCIALIST
39 Livelihood, equitable distribution of resources, equal pay for equal work, SOCIALIST
healthy development of children
39A Equal justice, free legal aid to poor SOCIALIST
40 Village panchayats GANDHIAN
41 Right to work, education, public assistance SOCIALIST
42 Just and humane conditions of work, maternity relief SOCIALIST
43 Living wage, standard of living, social and cultural opportunities; SOCIALIST;
Cottage industries GANDHAIN
43A Workers participation in management of industries SOCIALIST
44 Uniform Civil Code LIP
45 Early childhood care and education LIP
46 Education and economic opportunities for SCs, STs, weaker sections GANDHIAN
47 Raise nutritional level, standard of living, public health; SOCIALIST;
Prohibit intoxicating drinks and drugs GANDHIAN
48 Prohibit slaughter of cows, calves and mulch and drought cattle, improve GANDHIAN;
their breeds;
Organise agriculture and animal husbandry on scientific lines LIP
48A Protect environment, forests and wildlife LIP
49 Protect places/monuments of artistic/historic importance LIP
50 Separate judiciary from executive in public services LIP
51 International peace and security LIP

CONFLICT BETWEEN FR AND DPSPs


 FR: justiciable

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 DPSPs: non-justiciable, but morally binding (Article 37)


 This has caused conflict between the two.
 1951: Champakar Dorairajan case
 SC: FR prevails over DPSP in cases of conflict
 But Parliament can amend FR
 Thus Parliament made the following amendments to implement DPSPs
a) 1st CA 1951: State can make provisions for the advancement of socially and educationally backward
classes
 Saving of Laws for the acquisition of estates (curtailing right to property)
 9th Schedule to protect Land reform laws and other Laws from judicial reviews
 Added new grounds for restriction of freedom of speech o etc
b) 4th CA 1955: More acts in the 9th schedule to curtail Right to property. Broadened Article 31A
c) 17th CA 1964: Curtailed Right to Property further under the 9th schedule
 And by creating conditions for payment of compensation (Land should be agricultural, within
statutory ceiling Limits and under personal cultivation)
 1967: Golaknath case
 SC: Parliament cannot abridge FR to implement DPSPs
 Parliament's response
 24th CA 1971: Parliament can abridge FR by CA
 25th CA 1971:
(a)Laws abridging Articles 14, 19 or 31 for implementation of Articles 39(b) and 39%c) shall not be
void on grounds of abridging the above FRs
(b) Shall not undergo judicial review for violating Articles 14, 19 and 31.
 1973: Keshavananda Bharati case
 SC: judicial review is a basic feature of the Constitution, cannot be abridged by Constitutional
Amendments
 Thus point (b) of the 25th CA 1971 is invalid
 Point (a) was held to be valid.
 The 42nd CA 1976 tried to expand Point (b) of the 25th CA to include all DPSPs and not just
Article 39 (b) and (c)
 1980: Minerva Mills case
 The above provision of the 42nd CA 1976 was declared void.
 DPSPs subservient to FR
 BUT Articles 39 (b) and (c) not subservient to Articles 14, 19 and 31
 "The Indian Constitution is founded on the bedrock of balance between Fundamental Rights and
the Directive Principles... Harmony and balance between the two is an essential feature of the
basic structure of the Constitution."
RELEVANT ARTICLES
 Article 14: Right to equality
 Article 19: Right to freedom of speech, etc.
 Article 31: Right to property (repealed)
 Article 31A: Saving of laws providing for the acquisition of estates etc.
 Article 31B: Validation of certain acts and regulations (included in 9 th Schedule)
 Article 39(b): The equitable distribution of material resources of the community for the common
good
 Article 39(c): Prevention of concentration of wealth and means of production
CRITICISM OF DPSPs
 Non-justiciable
 Inconsistent philosophy
 No Logical classification

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 vital economic issues are given the same status as sentimental issues
 Out-Dated for the 21st century
 Can create constitutional conflicts
a) E.g.: If the Centre directs the states to implement a and the State does not comply, the state
government can be dismissed. Similar conflicts can occur between the President and PM, or
the Governor and CM
UTILITY 0F DPSPs
 Fundamental to the governance of the country
 Embody the social justice aspect of the constitution
 Ambedkar: The Directives lay the path for an economic democracy (FR: political democracy).
 So they supplement FRs.
 Implementation of DPSPs creates better conditions for realisation of FRs.
 Directions for creating a welfare state and a social revolution
 Moral precepts, educative value
 They remind the state of the basic principles of the social and economic order that the Constitution
aims to build
 Help courts in the judicially reviewing the Constitutional validity of Laws
 An ideological guide, they secure some continuity in policies in spite of a party-system democracy
 A common political manifesto
 A test for the government's performance
 A standard for judging the work of the government
IMPLEMENTATION OF DPSPs
 Through 5 year plans, which aimed towards socio-economic justice and reducing inequalities
 Through Laws (Central and State)
 Article 39: Equal pay for equal work for men and women {Equal Remuneration Act (1976)}
 Article 42: To make provision for just and humane conditions of work and maternity relief {Maternity
Benefits (Amendment) Act (2016)}
 Article 40: To organise village panchayats and endows them with necessary powers and authority to
enable them to function as units of self-government (73rd CA 1992)
 Similarly, states have made various laws to implement DPSPs like Land reform Laws.
 We are working towards realisation of the DPSPs: e.g.: UCC (Article 44)
OTHER DIRECTIVES
 Outside of Part IV
 Non-Justiciable as well
 Equally Important
 The constitution must be read as a whole
 Article 335: (Part XVI)- Claims of SCs and STs to services
 Article 350A: (Part XVII)- Instruction in mother tongue
 Article 351: (Part XVII)- Development of Hindi Language
COMPARING DPSP WITH SUSTAINABLE DEVELOPMENT GOALS(SDGs)
 SUSTAINABLE DEVELOPMENT GOALS
 The Sustainable Development Goals (SDGs), or the Global Goals, are a universal call to action to
end poverty, protect the planet and ensure that at all people enjoy peace and prosperity
 There are 17 goals with 169 targets
 They cover social and economic development issues including poverty, hunger, health,
education, global warming, gender equality, water, sanitation, energy, urbanization,
environment and social justice.

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ARTICLE DPSP SDGs


38 Welfare of people, justice, equality #10: Reduced inequality
#16: Peace and justice; strong institutions
39 Livelihood, equitable distribution of #1: No poverty
resources, equal pay for equal work, #3: Good health and well being
healthy development of children #5: Gender equality
39A Equal justice, free legal aid to poor #16: Peace and justice; strong institutions
40 Village panchayats -
41 Right to work, education, public assistance #8: Decent work and economic growth
#4: Quality education #16: peace and justice strong
institutions
#16: Peace and justice; strong institutions
42 Just and humane conditions of work, #8: Decent work and economic growth
maternity relief #5: Gender equality
43 Living wage, standard of living, social and #8: Decent work and economic growth
cultural opportunities; #1: No poverty
Cottage industries
43A Workers participation in management of -
industries
44 Uniform Civil Code -
45 Early childhood care and education #3: Good health and well being
#4: Quality education #16: peace and justice
46 Education and economic opportunities for -
SCs, STs, weaker sections
47 Raise nutritional level, standard of living, #3: Good health and well being
public health;
Prohibit intoxicating drinks and drugs
48 Prohibit slaughter of cows, calves and #15: Life on Land
mulch and drought cattle, improve their
breeds;
Organise agriculture and animal husbandry
on scientific lines
48A Protect environment, forests and wildlife #13: Climate Action
#15: Life on Land
49 Protect places/monuments of #11: Sustainable Cities and Communities
artistic/historic importance
50 Separate judiciary from executive in public -
services
51 International peace and security #17: Partnerships to achieve the Goal

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PYQs
2017 PELIMS 17. Consider the following statements :
With reference to the Constitution of India, the Directive Principles of State Policy constitute limitations
upon
1. legislative function. 2.executive function
Which of the above statements is/are correct?
(a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
2017 PELIMS 7. Which principle among the following was added to the Directive Principles of State Policy by
the 42nd Amendment to the Constitution?
(a) Equal pay for equal work for both men
(b) Participation of workers in the management of industries
(c) Right to work, education and public
(d) Securing living wage and human and women management of industries assistance conditions of work to
workers
Explanation: AR 43A: to take steps to secure the participation of workers in the management of industries
2015 PELIMS 7. Consider the following statements regarding the Directive Principles of State Policy:
1. The Principles spell out the socio- economic democracy the country
2. The provisions contained in these Principles are not enforceable by any court.
Which of the statements given above is/are correct?
(a) 1 only. (b) 2 only (c) Both 1 and 2 (d) Neither nor2
2015 PELIMS 89. The ideal of ‘Welfare State' in the Indian Constitution is enshrined in its
(a) Preamble. (b) DPSP (c) FRs (d) 7th Schedule
2014 PRELIMS In the Constitution of India, promotion of international peace and security is included in the
(a) Preamble. (b) DPSP (c)FDs (d) 9th Schedule
Explanation: Article 51: to promote international peace and security and maintain just an honorable
relations between nations between nations; to foster respect for international Law and treaty obligations,
and to encourage settlements of international disputes by arbitration
2013 PRELIMS Acc. To Constitution of India, which of the following are the fundamental for the governance
of country
(a) FRs. (b) FDs (c) DPSP (d) FRs & FDs
2013 PRELIMS ‘Economic Justice’ as one of the objectives of the Indian constitution has been provided in
(a) Preamble and FRs. (b) Preamble and DPSP. (c)FRs and DPSP. (d)None of the above

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INDIAN POLITY:M-LAXMIKANT
CHAPTER:9
(FUNDAMENTAL DUTIES)
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WHAT ARE FUNDAMENTAL DUTIES


 Rights and duties: correlative, inseparable
 Original Constitution: only rights, no duties for citizens
 Duties of State: DPSP
 FDs added with the 42nd CA 1976.
 One more through the 86th CA 2002
 Inspired by USSR, where rights and duties were inseparable. Also in Japanese Constitution
 Other major democracies do not list FDs in their constitutions (like Germany, USA etc)
CHARACTERISTICS:
 Moral and civic duties
 Highlight values of India traditions, religions, practices and mythology
 Codify tasks integral to the Indian way of Life
 Only applicable to citizens
 Non-justiciable
 No legal sanction against their violation
 Parliament can enforce them with legislation
SIGNIFICANCE
 Remind citizens to be conscious of their duties while enjoying their rights
 Deter anti-national and antisocial activities
 Inspire citizens towards nation building and discipline
 Remind citizens of their necessity in achieving national goals.
 Help courts in examining constitutional validity of Laws: may consider some laws a reasonable
restricting Articles 14 and 19 for the implementation of FDs
 Enforceable by Law, if the Parliament so Legislates.
 Strengthens democracy (Indira Gandhi)
SWARAN SINGH COMMITTEE
 Set up in 1976 to make recommendations about FDs.
 Need felt during the emergency period(1975-77)
 Recommendations: Accepted and Not Accepted o
 Accepted:
 Part IV-A added containing Article 51-A
 Suggested 8 fundamental Duties, most of which were included in the Constitution under the 42 nd
CA 1976
 Not Accepted:
 Penalty/punishment for non-observance of FDs
 These laws cannot be declared unconstitutional for abridging FRs or infringing on other
provisions of the Constitution
 Duty to pay taxes a FD.
LIST OF FDs
 Article 51-A: It shall be the duty of every citizen,
 To abide by the Constitution, respect its ideals an institutions, the National Flag, and the National
Anthem
 To cherish and follow the noble ideals that inspired the national struggle for freedom
 To uphold and protect the sovereignty, unity and integrity of India
 To defend the country and render national service when called upon to do so

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 To promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, Linguistic and regional or sectional diversities and to renounce practices
derogatory to the dignity of women
 To value and preserve the rich heritage of the country's composite culture
 To protect and improve the natural environment including forests, lakes, rivers and wildlife and
to have compassion for Living creatures
 To develop scientific temper, humanism and the spirit of inquiry and reform
 To safeguard pubic property and to abjure violence
 To strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement
 To provide opportunities for education to his child or ward between the age of six and fourteen
years.(86th CA 2002)
CRITICISM OF FDS
 List not exhaustive
 Some duties are ambiguous: 'noble ideals', 'scientific temper’
 Non-justiciable: Just a code of moral precepts
 Unnecessary inclusion in the Constitution
 Included after DPSPs, not after FRs (Part III). This reduces their value and significance.
VERMA COMM TTEE
 On Fundamental Duties of the Citizens
 In 1999
 To ID the legal sanctions behind Fundamental Duties
 Identified laws like
a) The Prevention of Insults to National Honour Act 1971
b) Wildlife (Protection) Act of 1972
PYQs
1. 2017 36. Which of the following statements is/are true of the Fundamental Duties of an Indian citizen ?
1. A legislative process has been provided to enforce these duties.
2. They are correlative to legal duties.
Select the correct answer using the code given below
(a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2
REASON: Parliament can provide a legislative process - Not necessarily correlative (having a mutual to
enforce them relationship, corresponding) with legal duties, E.g.: duty to pay tax is a Legal duty but not a
fundamental duty
2. 2017 47. In the context of India, which one of the following is the correct relationship between Rights and
Duties?
(a) Rights are correlative with Duties.
(b) Rights are personal and hence independent of society and Duties.
(c) Rights, not Duties, are important for the advancement of the personality of the citizen
(d) Duties, not Rights, are important for the stability of the State

3. 2015 83 "To uphold and protect the sovereignty, Unity and Integrity of India" is a provision made in the
(a) Preamble of the Constitution (b) Directive Principles of State Policy
(c) Fundamental Rights (d) Fundamental Duties

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INDIAN POLITY- M. LAXMIKANT


CHAPTER-10 (AMENDMENT OF THE CONSTITUTION)
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PROCEDURE FOR AMENDMENT


 Amendments allows the Constitution to adjust to society as it changes
 Article 368: Power of the Parliament to amend the Constitution and procedure therefore
 Parliament can add, change, or repeal any provision of the Constitution in accordance with the
procedure.
 SC in Keshavananda Bharati case (1973): Parliament cannot amend the basic structure of the
Constitution.
 Procedure under Article 368:
 For an amendment, a bill needs to be initiated in either House of the Parliament
o Cannot be initiated in a State legislature
 Does not require prior permission of the President
 Both private members and minister can initiate a CA bill
 Should pass in each house with a special majority
 More than 50% of all members, and more than 2/3 of those present and voting
 No provision of a joint sitting. Thus each House must pass the bill separately
 Half of the states need to ratify that bill in case it intends to amend a federal provision.
 After passed, presented to the President, who must give his assent (24th CA 1971)
o S/he cannot withhold the bill, or return it for reconsideration.
 After the Presidents assent, the Constitution stands amended
TYPES OF AMENDMENTS
 3 types
 Under Article 368
 By a special majority of the Parliament
 By a special majority of the Parliament and ratification by half of the state legislatures
 Under other articles of the Constitution:
 Amendment by simple majority
 Not deemed as Amendments for the purposes of Article 368
SIMPLE MAJORITY
 Such amendments are not considered amendments for the purposes of Article 368
 Can be used for the following provisions:
 Changing the organisation of states (boundaries new states, names)
 Creating or removing legislative councils in states
 2nd, 5th and 6th Schedules are needed for modification
 2nd Schedule: emoluments, allowances etc of the President, Judges etc
 5th Schedule: administration of Schedules areas and scheduled tribes
 6th Schedule: administration of tribal areas
 In the Parliament: salaries, allowances, rules of procedure, quorum, use of English Language, privileges
 Some aspects of elections to the Parliament and State legislature (e.g.: delimitation)
 Supreme Court: number of puisne judges (senior judges inferior to the CJI), increasing jurisdiction of SC
 Union Territories
 Use of Official Language
 Citizenship
SPECIAL MAJORITY WITH RATIFICATION BY HALF THE STATES
 Related to federal provisions (Amendments under Article 368)
 No time limit in which the states have to respond

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 Once affirmative response of half the states is received, the response of the rest of the states does not
matter (whether negative, positive or withheld)
 Provisions that can be amended in such a way:
 Election of the President and its manner
 Executive and legislative power of the Union and the States
 Supreme Court and High Courts
 7th Schedule
 Representation of states in Parliament
 Article 368 itself
SPECIAL MAJORITY
 All other provisions that can be amended. E.g.: Fundamental Rights, DPSP
 Special Majority: More than 50% of the total membership of each house and a majority of two-thirds
of the members of each house present and voting.
 Total membership means the total number of members comprising the house irrespective of fact
whether there are vacancies or absentees.

CRITICISM OF THE AMENDMENT PROCEDURE


 No special body Like in the USA (Constitutional Convention)
 Major part can be amended by the Parliament alone.
 States cannot initiate a bill except a resolution for creating/disbanding a legislative council
 Even here, the Parliament can approve, disapprove, or not take any action
 No time Limit for the state legislatures to ratify amendments submitted to them.
 No clarity if states can withdraw approval
 No provision for joint sitting
 Procedure for amendment very similar to the ordinary Legislative process
 Wide scope for taking matters to the Judiciary.

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INDIAN POLITY- M. LAXMIKANT


CHAPTER 11
(BASIC STRUCTURE OF THE CONSTITUTION)
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HOW THE DOCTRINE EMERGED


 From Question: Can Fundamental Rights be amended by the Parliament under Article 368?
 1951: Shankari Prasad Case
 Over the constitutional validity of the 1st CA, which curtailed the right to property.
 SC: Parliament can amend FRs under Article 13, CA is not included in the definition of Laws'

ARTCILE 13
 Provides for Judicial review
 All Laws that are inconsistent with or in derogation of any FR shall be void
 SC under Article 32 and HC's under Article 226 have the power of judicial reviews
 "Law" for the purposes of Article 13 is
 Laws enacted by legislatures
 Ordinances
 Executive legislation like order, bye-law, rule- regulation or notification
 Custom or usage having the force of Laws
 Article 13 does not define a CA as a Law, but SC said that a CA can be challenged for violating an FR that
forms a part of the basic can structure of the Constitution (Keshavananda Bharati case, 1973)
 In 1967: Golaknath case
 17th CA: included more acts in the 9th Schedule, removing them from the scope of judicial reviews
 Abridged right to property
 SC: FRs are 'transcendental and immutable'
 Parliament cannot abridge them
 CA's are laws under Article 13
 Parliaments reaction:
 24th CA 1971
 Amended Article 13: CA not a Law under the definition of Article 13
 Amended Article 368: Parliament has the power to take abridge/take away FRs
 In 1973: Keshavananda Bharati Case
 SC overruled its Golaknath judgement
 Upheld 24th CA: Parliament can abridge FRs
 Created the doctrine of 'basic structure'/basic features'
 Parliament cannot alter this basic structure under Article 368
 Parliaments reaction:
 42nd CA 1976
 Amended Article 36s: there is no Limitation on the constituent power of the Parliament to amend
the constitution
 Amendments cannot be judicially reviewed
 In 1980: Minerva Mills Case
 SC said: Judicial Review is a basic feature of the constitution & the parliament cannot abridge it
 Parliament has a limited power to amend the constitution
 It can’t use the limited powers to give itself unlimited powers
 In 1981: Waman Rao case
 SC said: The basic structure doctrine to apply to all CAs enacted after 24th April 1973, i.e. after the
Keshavananda Bharati Judgement.

WHAT IS THE BASIC STRUCTURE

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 The doctrine forms the basis of a limited power of the SC to review and strike down constitutional
amendments enacted by the Parliament which conflict with or seek to alter this "basic structure" of the
Constitution.
 The basic structure doctrine applies only to constitutional amendments, not to ordinary Acts of
Parliament.
 Although Keshavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since
gained widespread acceptance and legitimacy due to subsequent cases and judgments.
 The influence extends to Commonwealth Countries sharing the judicial system with India. The basic
structure doctrine was adopted by the SC of Bangladesh in 1989, by expressly relying on the
reasoning in the Keshavananda case.
 SC declared that the basic structure/features of the constitution is resting on the basic foundation of the
constitution.
 The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme
importance and cannot be destroyed by any legislation of the parliament.
 The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of
any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case
that comes before it.
 At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and
have been incorporated in the basic structure.

ELEMENTS OF BASIC STRUCTURE


 Some of the features of the Constitution termed as "basic" are listed below:
 Supremacy of the Constitution
 Rule of Law
 The principle of separation of Powers
 The objectives specified in the Preamble to the Constitution
 Judicial Review
 Articles 32 and 226
 Federalism (including financial Liberty of states under Articles 282 and 293)
 Secularism
 The Sovereign, Democratic, Republican structure
 Freedom and dignity of the individual
 Unity and integrity of the Nation
 The principle of equality, not every feature of equality, but the quintessence of equal justice
 The "essence" of other Fundamental Rights in Part III
 The balance between Fundamental Rights and Directive Principles
 The parliamentary system of government
 The principles of free and fair elections
 Limitations upon the amending power conferred by Article 368
 Independence of Judiciary
 Effective access to justice
 Powers of the Supreme Court under Articles 32, 136, 141, 142
 Legislation seeking to nullify the awards made in exercise of the judicial power of the State by
Arbitration Tribunals constituted under an Act
 Welfare state
 The concept of social and economic justice- to build a Welfare state: Part IV

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Indian Polity-M. Laxmikant
Chapter-12-Parliamentary System
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INTRODUCTION
1. The relationship between the executive and the legislature is the basis for classification of democracies as
parliamentary or presidential.
2. Presidential: executive is independent
3. Parliamentary: executive is responsible to the o of the legislature
4. Parliamentary: aka Cabinet government, responsible government, Westminster model, prime ministerial
government
• Britain, Japan, Canada, India
5. Presidential: non-responsible, non-parliamentary, fixed executive system
• USA, Brazil, Russia, Sri Lanka
INDIA'S SYSTEM
1. Parliamentary System
2. Enshrined in Article 74 and 75 for the Centre
a. Article 74: Council of Ministers to aid and advise the President
b. Article 75: Other provisions as to ministers
3. Articles 163 and 164 for the states
a. Article 163: Council of ministers to aid and advise the Governor
b. Article 164: Other provisions as to ministers
4. India chose the Parliamentary system because
a. India was familiar with it
b. Preference for more responsibility, which is given by the Parliamentary system (while Presidential
system gives more stability, but less responsibility)
c. Need to avoid legislative-executive conflicts to conserve an infant democracy.
d. Parliamentary system gives more scope for representation, which is apt for India diverse population.
e. Swaran Singh Committee studied in the 1970's if the Parliamentary system should be replaced by the
Presidential system in India. 1975 report recommended that there was no need for change on this
account
FEATURES OF PARLIAMENTARY GOVERNMENT
1. Nominal and Real Executives
a. Nominal: de jure, titular
• President
b. Real: de facto
• Prime Minister
(Article 74 says that advice of the council of ministers, led by the Prime Minister is binding on the
President)
2. Majority Party Rule
3. Collective Responsibility
a. Ministers are collectively responsible to the Lok Sabha (Article 75)
b. They can be removed if the Lok Sabha passes a vote of no-confidence
4. Political Homogeneity: members of the council of ministers usually belong to the same political party
(unless its a coalition government)
5. Double membership: ministers are members of both the executive and the legislature
6. Leadership of the Prime Minister, which gives him a crucial role in the govt.
7. Dissolution of the Lok Sabha before the end of its term
a. Possible on recommendation of the Prime Minister to the President
b. The executive enjoys the right to get the legislature dissolved in a parliamentary system
8. Secrecy: Ministers take an oath of secrecy before entering office, administered by the President

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a. They cannot divulge information about their proceedings, policies and decisions

FEATURES OF PRESIDENTIAL GOVERNMENT


The American System has the following features:
1. President is both head of state and head of government. Ceremonial head as well as leaders of the
executive
2. Elected for a fixed tenure of four years. Cannot be removed except by impeachment by the Congress for a
grave unconstitutional act.
3. Governs with the help of a smaller, Kitchen Cabinet.
a. only an advisory body
b. Non-elected departmental secretaries
c. Selected and appointed by him
d. Responsible only to him
e. Can be removed by him at any time
f. Not members of the legislature
4. President and his secretaries are not responsible to the legislature
a. They neither possess membership of the Congress nor attend its meetings
5. President cannot dissolve the lower House of the Congress
6. Based on the principle of separation of powers. The legislative, executive and judicial powers of the govt
are separated and vested in 3 independent organs of the govt.
MERITS OF THE PARLIAMENTARY SYSTEM
1. Harmony between the Legislature and the Executive
a. Greatest advantage of the Parliamentary system
b. Executive is a part of the legislature, and both are interdependent
2. Responsible government: Parliament holds the executive accountable through devices like the question
house, discussions, adjournment motions etc.
3. Prevents despotism as authority is vested in a group of individuals (the council of ministers) and not a
single person. This, disposal of authority checks the dictatorial tendencies of the executive. Moreover, the
executive is responsible to the parliament and can be removed by a No-Confidence motion.
Ready alternative government are the head of the state can invite the opposition party to form the
government in case the ruling party loses its majority. This means an alternative government can be
formed without fresh elections. Hence, Dr Jennings said, “The leader of opposition is the alternative PM”.
5. Wide representation through the executive, as ministers are representatives of the people as well.
DEMERITS OF THE PARLIAMENTARY SYSTEM
1. Unstable government
a. No guarantee that government will survive its tenure
b. No-confidence motion, political defection, coalitions etc.
2. No continuity of policies
a. A change in the ruling party is generally followed by changes in policies of the government
3. Dictatorship of the Cabinet
a. Especially when ruling party enjoys absolute majority in the Parliament
4. Against separation of powers
a. In it, the legislature and the executive are together and inseparable. The cabinet acts as the leader of
the legislature as well as the executive. Bagchot points out, “The Cabinet is a hyphen that joins the
buckle that binds the executive and legislative departments together”. Hence, the whole system of
govt goes against the letter and spirit of the theory of separation of powers. In fact, there is a fusion
of powers.
5. Government by amateurs
a. Ministers are not experts in their fields. The PM has a limited choice in the selection of ministers; his
choice is restricted to MPs alone and does not extend to external talent. Moreover, the ministers
devote most of their time to parliamentary work, cabinet meetings and party activities.

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INDIAN AND BRITISH SYSTEM
Difference with the British System:
1. India a republic. Britain a Constitutional Monarchy.
2. Parliament is supreme in Britain. India's Parliament is restricted by a written constitution, federal system,
judicial review and fundamental rights.
3. British Prime Minister has to be a member of the Lower House. Indian Prime Minister can belong to any
House of the Parliament.
4. Only members of Parliament can be appointed as ministers in Britain. In India, anyone can be appointed
for maximum six months
5. Britain's ministers have legal responsibility for official acts. Indian's ministers are not required to
countersign the official acts of the head of the State.
6. Shadow Cabinet: Unique British institution
a. Opposition party members form it to balance the ruling cabinet and to prepare its members for
future ministerial office.
b. No such institution in India

COMPARING THE PARLIAMENTARY AND PRESIDENTIAL SYSTEM

1. Features of Parliamentary and Presidential System

PARLIAMENTARY SYSTEM PRESIDENTIAL SYSTEM


Dual Executive Single Executive
Majority Party Rule President & Legislators elected separately for a
fixed term
Collective Responsibility Non-Collective Responsibility
Political Homogeneity Political homogeneity may not exist
Double Membership Single Membership
Leadership of Prime Minister Domination of the President
Dissolution of Lower House No dissolution of lower house
Fusion of powers Separation of powers

2. Demerits of Parliamentary and merits Presidential system

PARLIAMENTARY SYSTEAM: DEMERITS PRESIDENTIAL SYSTEM: MERITS


Unstable government Stable government
No continuity of policies Definiteness in policies
Against separation of powers Based on separation of powers
Government of Amateurs Government by experts

3. Merits of Parliamentary and demerits Presidential System

PARLIAMENTARY SYSTEAM: MERITS PRESIDENTIAL SYSTEM: DEMERITS


Harmony between the legislature and the executive Conflict between the legislature and the executive
Responsible government Non-responsible government
Prevents Despotism May lead to despotism
2. Wide representation Narrow representation

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1
INDIAN POLITY-M. LAXMIKANT
CHAPTER-13
(FEDERAL SYSTEM)
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INTRODUCTION
 Unitary government: all powers vested with the national government
 If regional governments exist, then they derive their authority from the national government
 Britain, France, Japan, China
 Federal government: Powers are divided between the national and the regional government by the
Constitution itself
 USA, Switzerland, Canada, India
 Units of a federation known by many names like States (India) or Cantons (Switzerland)
 Federation can be formed in two ways
a) Coming together: by way of integration
 A number of small states come together to form a big union
 US is the oldest federation, and it is a coming together federation
b) Holding together: by way of disintegration
 A big unitary state is converted into a federation by granting autonomy to provinces to
promote regional interests
 Like Canada or India
 Indian Constitution provides for a federal scheme to account for the diverse population and the vast
size of the country
 It combines efficient governances with national unity and regional autonomy
 However, India does not describe itself as a federation.
 The term federation is not used in the Constitution. Article 1 describes India as a Union of States
 Term 'Union, preferred over the term federation, as
 Indian federation is not the result of an agreement between states, unlike the American
federation
 States have no right to secede. The federation is a union because it is indestructible.
 The Indian federal scheme is based on the Canadian model and not the American model.
 Strong centre
 Formed by disintegration
 Prefers the term Union
 Centralising tendency as centre has more power than states
COMPARISON BETWEEN FEDERAL GOVERNMENT AND UNITARY GOVERNMENT
FEDERAL GOVERNMENT UNITARY GOVERNMENT
Dual government (national and regional) Single government, that is, the National
government may create regional governments
Written Constitution Constitution may be written, like in France, or
unwritten, like in Britain
Division of powers between the national and No division of powers. All powers with the
regional government national government
Supremacy of the Constitution Constitution may be supreme, Like in Japan, or
may not be supreme, Like Britain
Rigid Constitution Constitution may be Rigid like in France Or flexible
like in Britain
Independent judiciary Judiciary may be independent or may not be
independent
Bicameral legislature Legislature may be bicameral, Like in Britain or
unicameral, Like in China

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2

FEDERAL FEATURES
1. Dual Polity
 The Centre and the State are both endowed with sovereign powers in the fields assigned to
them by the Constitution.
 Union govt deals with matters of national importance like defence, foreign affairs, currency,
communication and so on. While state govt deals with matters of regional importance like
agriculture, public order, health, local govt and so on.
2. Written Constitution
 Specifies the organisation, powers, role etc of the Centre and the States
 Avoids misunderstands and disagreements between the two
3. Division of powers
 Constitution provides for division of subjects in the 7th Schedule.
 Union List, State List, Concurrent List
 Residuary subjects: not mentioned in any of the lists. Power lies with the Centre.
4. Supremacy of the Constitution
 Laws of the Centre and States must conform to the Constitution
 Thus the Centre and States must operate with the jurisdiction prescribed by the Constitution
 The judiciary's power of judicial reviews can declare any excesses invalid
5. Rigid Constitution
 Any provisions of the Constitution that relate to the federal scheme can be amended only
with a special majority of each house and the ratification of half of the states.
6. Independent judiciary
 Protects the Supremacy of the Constitution using the power of Judicial review
 Settles disputes between the Centre and the States or between states
7. Bicameralism
 Rajya Sabha represents the State of India at the Centre
 Lok Sabha represents the people of India as a whole
 Rajya Sabha maintains federal equilibrium by protecting the interests of the states against 'the
undue interference of the Centre
UNITARY FEATURES
1. Strong Centre
 Division of powers is in favour of the Centre
 Inequitable
 Union List has more subjects than State List
 Residuary powers are with the Centre
2. States are not indestructible
 The Parliament can unilaterally change the area, boundaries and name of any state with a
simple majority
3. Single Constitution
 Only exception: J&K
 Otherwise States do not have the right to frame their own Constitution
4. Flexibility of the Constitution
 More than what is found in other federal nations
 Power to initiate amendment is only with the Centre
5. No equality of state representation
 Membership in Rs varies from 1 to 31 members
 Unlike the American senate, which has 2 members from each state
6. Emergency Provisions
 which convert the federal structure into a unitary one without a formal amendment of the
Constitution
7. Single citizenship
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3
 Most other federal states like USA, Australia etc have national and state citizenship but India
has only one citizenship i.e. national citizenship
8. Integrated Judiciary
 A single system of courts enforces both Central and state laws
 USA: federal judiciary enforces federal laws. State judiciary enforces state laws
9. AlL India Services
 Central and State governments have separate public services, but in addition there are also
all-India services
 IAS, IPS and IFS
 Members are recruited and trained by the Centre, which also have ultimate control over
them. But they also work for states. This violates the federal principle of the Constitution
10. Integrated Audit Machinery
 CAG audits accounts of the Central and the State governments
 S/he is appointed or removed by the President, without consulting the states
 This restricts the financial autonomy of the states
11. Parliaments Authority over the State
 List passes a resolution accordingly in national interest
 This does not need a constitutional amendment, or an emergency situation
12. Appointment of Governor
 The head of the state is appointed by the President
 Acts as an agent of the Centre, through whom the Centre exercises control over the states
13. Integrated Election Machinery
 The Election Commission is constituted by the President.
 States have no say in its membership.
14. Veto over state bills
 The governor can reserve certain types of bills passed by the state legislature for the
consideration of the President.
 President can withhold assent to these bills in the first and the second instance (absolute
veto)
CRITICAL ANALYSIS
 The Indian Federal scheme has deviated considerably from traditional federal systems Like US,
Switzerland or Australia
 Described as quasi-federal, bargaining federalism, cooperative federalism
 A unitary state with federal features
 K Santhanam: two factors responsible for increased unitary bias in the Indian system
o Dominance of the centre in terms of finances, with states dependent on the Centre for grants.
o Planning Commission, which controlled the developmental process in states.
 BR Ambedkar: The Constitution is federal in as much it establishes a federal polity.
 Both the Union and the States are created by the Constitution, and both derive authority from it.
 Yet the Constitution avoids the tight mould of federalism and could be both unitary and federal
according to the requirements of time and circumstances
 Basic principle of federalism: legislative and executive authority is partitioned between the Centre
and the States by the Constitution (not by Laws)
 This the Constitution does.
 The states are in no way dependent on the Centre for their legislative or executive authority.
 SR Bommai case (1994): federalism is a basic feature of the Constitution
 Within the sphere allowed to states, they are supreme, not mere appendages of the Centre.
 Emergency powers are an exception, not the rule.
 Federalism in India is a matter of principle, not of administrative convenience.
 It is the outcome of our own process and a recognition of the ground realities of India
 Federal Trends in the Indian political system:
 Coming up of regional parties
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 Creation of states to fulfil regional aspirations development needs interference by the Centre
 Demand of states for financial grants for their
 Assertion of autonomy by states, resistance of interference by the centre.
 Territorial Disputes between the states, for e.g.: Karnataka and Maharashtra over Belgaum
 Disputes between states over sharing of river water, for e.g.: Between TN and Karnataka over
Cauvery river.
 SC’s imposition of several procedural limitations on the use of Article 356 (President’ Rule in
state) by Centre
 Federalism in India is a compromise between a normal division of powers in which states enjoy their
autonomy, and the heed for national integrity and a strong Union government under exceptional
circumstances,
PYQs
PRELIMS 2015 100. Which one of the following is not a feature of Indian federalism?
(a) There is an independent judiciary in India
(b) Powers have been clearly divided between the Centre and the States.
(c) The federating units have been given unequal representation in the Rajya Sabha
(d) It is the result of an agreement among the federating units
MAINS
2014 Though the federal principle is dominant in our Constitution and that principle is one of its basic
features, but it is equally true that federalism under the Indian Constitution leans in favour of a strong
Centre, a feature that militates against the concept of strong federalism. Discuss
ANSWER
 Federalism is a form of govt. in which the sovereign authority of political power is divided between
various units-Centre, state, Local govt etc. It is a tool of political convenience intended to reconcile
national unity and integrity But Indian constitution is also one which emphasizes the concept of
"cooperative federalism"
 Indian federalism was designed on the models of USA, Canada and Australia. Yet, it has its own
distinctive features and deviates from the traditional 'federalism'
 Federal characteristics: Dual polity- 7th, 11th and 12th schedule distributing powers, Supreme
constitution-written and controlled(rigid), authority of courts- Supreme Court's judgement
amount to law of Land.
 Deviations:
a. Legislative relations: Under art 249, Parliament can make law on state List in national interest. Under
art 253 for giving effects to international agreements. Under art 246, primacy given to Union's
legislation in case of overlap
b. ALL India services
c. Art 356: Executive power of state needs to conform to parliament's Laws and executive directions.
Union can impose President's rule if this is violated
d. Parliament can form new states, alter boundaries of existing states,
e. Appointment of governors: they are answerable to President and not state. They can withhold state
Law under certain circumstances and send it to President who is not bound to give her assent
f. Emergency powers: Distribution of powers between state and centre undergo a vital change in
favour of centre. Under Art 356 state Legislature can be dissolved.
g. Single and Uniform citizenship plus integrated judiciary
h. India is a single economic unit for purposes of trade and commerce under the overall control of
centre.
i. Residuary powers of legislation rest with parliament.
j. Stakes have no rights to secede
 The SC in its judgements in Ram Dawaya V State of Pun jab (19ss) and Kuldip Nayar V UOI(2006) has said that
federalism in India leans in favour of a strong centre. Indian constitution is thus unique because of its mode
of formation i.e. from union to states and not vice versa. Art 1 terms India into Union of states and not
federation. It is both unitary and federal according to requirements of time and circumstances leading some
to call it quasi federal.

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INDIAN POLITY- M.LAXMIKANT
CHAPTER- 14
(CENTRE-STATE RELATIONS)
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INTRODUCTION
 Legislative, executive and financial powers of the Centre and the States is divided federally by the
Constitution of India.
 Judicially, there is no division of powers. An integrated judicial system enforces both Central and
State Laws.
 Thus Centre-state (CS) relations are studied under three headings:
 Legislative Relations
 Administrative Relations
 Financial Relations
1. LEGISLATIVE RELATIONS
 Part XI: CENTRE STATE LEGISLATIVE RELATIONS
 Articles 246-265
 Four aspects to the legislative division of powers between C-S legislation
 Territorial extent of C-S legislation
 Distribution of legislative subjects
 Parliamentary legislation on state subjects
 Centre's control over state legislation
2. ADMINISTRATIVE RELATIONS
 Part XI
 Article 266-263
 Regarding:
 Distribution of Executive Powers  All India Services
 Obligation of States and the Centre  Public Service Commissions
 Centres Directions to States  Integrated Judicial system
 Mutual Delegation of Functions  Relations during Emergency
 Cooperation between the Centre and States  Extra-Constitutional Devices and other Provisions
3. FINANCIAL RELATIONS
 Part XII
 Article 268-293
 Concerning
 Allocation of Taxation Powers  Protection of state's Interest
 Distribution of Tax revenue  Borrowing by the Centre and the States
 Distribution of Non Tax Revenue  Inter-Governmental Tax Immunities
 Finance Commission  Effects of Emergencies
LEGISLATIVE RELATIONS
A. TERRITORIAL EXTENT OF C-S LEGISLATION
 Parliament: laws for the whole or part of territory of India
Includes state, UTs and any other area included in territory of India
 State legislature: Laws for whole or part of the territory of the State
 Not applicable outside the state unless there is a sufficient connection between the state and the
object
 Extra-territorial legislation: legislation for Indian citizens and their properties in any part of the world
 Only Parliament can make
 Restriction on the plenary territorial jurisdiction of the Parliament:
 President can make regulation for the peace, progress and good government of Andaman and
Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu
i. Regulation will have the same force and effect as an act of Parliament

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ii. It can repeal or amend an Act of Parliament
 Governor can declare that an Act of Parliament is not applicable in a Scheduled Area of the state,
or applicable with certain modifications and exceptions o Governor of Assam can declare that an
Act of Parliament is not applicable in a tribal area (autonomous district) in Assam, or applicable
with certain modifications and exceptions
 Governor of Assam can declare that an Act of Parliament is not applicable in a tribal area
(autonomous district) in Assam, or applicable with certain modifications and exceptions
B. DISTRBUTION OF LEGISLATIVE SUBJECTS
 Three fold distribution in the Constitution (borrowed from the GoI Act 1936)
 List 1: the Union List
 Parliament has exclusive powers here
 100 subjects here Like defence, banking, foreign affairs
 Matters of national importance and matters which ere require uniformity of legislation included
here
 List 2: the State List
 The State legislatures have exclusive powers here, in normal circumstances
 61 subjects here Like sanitation, agriculture etc
 Matters of regional and local importance and matters which permit diversity of interest included
here
 List 3: the Concurrent List
 The State legislatures and the Parliament can makes Laws with respect to the subjects
enumerated here
 52 subjects here Like civil procedure, marriage and divorce etc
 42nd CA 1976 transferred 5 subjects from the state list to the Concurrent List: education, forests,
weights and measures, protection of wild animals and birds and administration of justice,
constitution and organisation of LL courts except SC and HCs.
 Matters on which uniformity of legislation is desirable but not essential are included here,
 Residuary powers with the Centre (under GoI Act, with the provincial legislature)
 In USA and Australia, only Central Lists are enumerated. All other powers are with the States.
 India follows the Canadian model of double enumeration, and keeping residuary powers with the
Centre.
 Constitution states that the Union List is predominant over the State List and the Concurrent List.
 The Concurrent list is predominant over the State List.
 On a Concurrent list subject, in case of conflict between a Central and state Law, the Central laws will
prevails.
 Unless the state law has been reserved for consideration of the President and has received the
Presidents assent.
 In this case, the state law prevails.
 But the Parliament can override such a law by making another law on the same matter.
C. PARLIAMNETARY LEGISLATION ON THE STATE FIELDS/SUBJECTS
 Allowed in 5 extraordinary Circumstances.
1) When RS passes a resolution
 In National Interest
 That parliament should make a law on a State subject
 Resolution needs 2/3 majority of those present and motion
 Resolution remains in force for 1 year, can be renewed one year at a time
 Laws cease to have effect 6 months after the resolution has ceased to be in force
 States can continue making laws on the same subjects, but in case of conflict the central law
prevails.
2) During a National Emergency
 Parliament gets the power to legislate on State Lists
 Laws valid till 6 months after the end of the emergency

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 States can continue making Laws on the same subjects, but in case of conflict the central law
prevails.
3) When States make a request
 The legislatures of two or more states can pass a resolution requesting the Parliament to enact
Laws on a matter in the States List
 Such a law will only apply to the States which requested the law in the first places
 Other states may adopt it later
 Such a laws can be amended or repealed only by the Parliament
 The State legislature does not have power over the relevant subjects anymore.
 E.g.: Transplantation of Human Organs Act 1994; Wildlife (Protection) Act 1972; Water (Prevention
and Control of Pollution) Act, 1974; Urban Land (Ceiling and Regulations) Act, 1976
4) To implement international agreements
 Parliament can make Laws on State subjects for this reason
 Allows the Central government to fulfil international obligations and treaties
 E.g.: Anti-Hijacking Act 1982; Geneva Convention Act, 1960; UN (Privileges & Immunities) Act,
1947 & legislations relating to environment and TRIPS
5) During President's Rule (PR)
 Such a law continues to operate even after Presidents Rule has ended
 State legislature can repeal or amend the law after the end of PR
D. CENTRE'S CONTROL OVER STATE LEG ISLATION
 The governor can reserve certain types of bills passed by the state legislature for the consideration of
the President
 The President enjoys absolute veto over these. can send them back for reconsideration, and reject
the reconsidered bill as well.
 Bills on certain matters enumerated in the state List can be introduced in the state legislature only
with previous sanction of the President. E.g.: bills imposing restrictions on the freedom of trade and
commerce
 The President can direct states to reserve money bills and other financial bills passed by the state
legislature for her consideration during a financial emergency
 Thus, the Constitution assigns a superior position to the Centre vis-a-vis the states.
ADMINISTRATIVE RELATIONS
A. DISTRIBUTION OF EXECUTIVE POWERS :
 Divided Largely on the lines of division of legislative subjects
 The Centre's executive power extends to the whole of India on matters enumerated in the Union List
 And to the exercises of rights, authority and jurisdiction conferred on it by any treaty or
agreement
 The states executive power extends to the territory of the state on matters enumerated in the State
List
 In matters of the Concurrent List, executive power is with States expect with a Constitutional
provision or a Parliamentary law explicitly confers it upon the Centre.
 Central laws on concurrent subjects have to be excited by States unless otherwise directed by the
Centre.
B. OBLIGATION OF STATES AND CENTRE
 There are two Constitutional restrictions on the States executive power to give unrestricted scope to
the Centre's executive power:
 The executive power of every state has to ensure compliance with the Parliamentary Laws, and
existing Laws applicable in the state
 The state's executive power cannot impede or prejudice the exercise of the executive power of the
Centre in the state
 The Centre can impose President's Rule under Article 365 and Article 36% if the state fails to comply
with or give effect to any directions given by the Centre.

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 Article 356: grounds of failure of constitutional machinery
 Article 365: failure to comply with the directions of the Centre
C. CENTRE'S DIRECTIONS TO STATE'S e
 Centre can give directions to the state about exercise of its executive powers in the following
manners:
 Construction and maintenance of means of communication of national or military importance
 Protection of railways
 Provision of adequate facilities for instruction in the mother-tongue at the primary state of
education of children of Linguistic minority groups
 Welfare of STs
 Coercive sanction of Article 365 is applicable in these cases as well.
D. MUTUAL DELEGATION OF FUNCTIONS
 The Constitution provides for a rigid distribution of legislative powers between the Centre and States.
 But there is a provision for inter-governmental delegation of executive functions. To allow for
flexibility and avoid deadlocks
 President, with consent of the state government, can entrust to hat state government any executive
functions of the Centre
 Governor, with consent of the Central government, can entrust to the Central government any
executive functions of the state.
 Parliament, without the consent of the state, can entrust executive functions of the Centre with a
state.
 A law made by the Parliament on a Union list subject can confer powers and imposed duties upon a
state
 State legislature cannot do the same.
 From the above it is clear that mutual delegation of functions b/w Centre and States can take place
either under an agreement or by a legislation. While the centre can use both the methods, a state
can use only the first method.
E. COOPERATION BETWEEN C-S
 Article 262: Parliament can provide for the adjudication of any dispute or complaint about the use,
distribution and controls of waters of any inter- state river and river valley
 Article 263: President can establish an Inter-State Council to investigate and discuss subjects of
mutual interest of states.
 Article 261: Full faith and credit is given throughout India to public acts, records and judicial
proceedings of the Centre and every state.
 Article 307: Parliament can appoint an appropriate authority to carry out purposes of the
constitutional provisions relating to the interstate freedom of trade, commerce and intercourse. But,
no authority has been appointed so far.
F. ALL INDIA SERVICES
 Centre and State have their separate services
 In addition, there are 3 all India services i.e. IAS, IPS and IFS
 Members of these services occupy key posts under both the Centre and the State, but are recruited
and trained by the Centre
 Article 312: Parliament can create a new All-India service on the recommendation of the Rajya Sabha
 These services violate the principle of federalism, yet are supported as
 They help maintain a high standard of administration in Centre and States
 Help ensure uniformity of administrative system throughout the country
 Facilitate Liaison, cooperation, coordination and joint action on issues of common interest
between the Centre and states.
G. PUBLIC SERVICE COMMISSION
 Chairperson and members of State PSC are appointed by the Governor and removed by the President

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 Parliament can established a Joint SPSC for two or more states on the request of state Legislatures.
Chairperson and members of JSPSC are appointed by the President.
 UPSC can serve the state on the request of the state governor, on approval of the President
 UPSC assists states when two or more states make the request in framing and operations schemes of
joint recruitment for any services for which candidates possessing special qualifications are required.
H. INTEGRATED JUDICIAL SYSTEM
 No dual administration of justice
 Integrated system with the SC at the top and HC.s below it
 Single system enforces both Central and state laws
 Eliminates diversities in the remedial procedure
 Judges of state HCs are appointed by the President in consultation with the CJI and the governor of
the state concerned . They can be transferred and removed by the President
 Parliament can establish a common HC for two or more states: e.g. for Goa and Maharashtra
I. RELATIONS DURING EMERGENCY
 During National Emergency (Article 362)
 Centre entitled to give executive directions to the states on any matter
 State governments are under complete control of the Centre, although not suspended
 During President's Rule (Article 356 and 365)
 President can assume functions of the State government
 Powers of the Governor
 Or any other executive authority of the state
 During Financial Emergency (Article 360)
 Centre can direct the states to observe financial propriety
 President can give other necessary directions like reducing of salaries of HC judges, etc
J. OTHER PROVISIONS
 Article 355: Centre has the duty to protect every state against external aggression and internal
disturbance
 To ensure that the government of every state is carried on in accordance with the Constitution
 The Governor of the State is appointed by the President.
 Holds office during the pleasure of the President
 Constitutional head of the state
 Agent of the Centre in the state
 Submits periodical reports to the Centre about the administrative affairs of the state
 State election commissioner is appointed by the governor, but only removed by the President.
FINANCIAL RELATIONS
A. FINANCE COMMISSION
 Article 280
 Finance Commission: a quasi-judicial body
 Constituted by the President every 5 years, or earlier
 FC to make recommendations to the President about the following matters:
a) Distribution of net proceeds of taxes to be shared between the Centre and the states and the
allocation between the states, the respective shares of such proceeds.
b) Principles which should govern grants-in-aid to the states by the Centre from the Consolidated Fund
of India
c) Measures to augment the Consolidated fund of a state to supplement resources of panchayats and
municipalities
o on basis of the recommendation of the State Finance Commission
o Any other matter referred to it by the President in the interests of sound finance.
 FC is envisaged as the balancing wheel of fiscal federalism in India

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 Currently, 15th FC is going on estd. In November 2017 and its chairperson is N.K. Singh and other
members are Shakti Kant Das and Anoop Singh
 Commission works as a arbitrator, means to distribute the taxes among the union and the states.
Therefore, it is called a quasi-judicial body. But, it’s recommendations are not obligatory in nature as
it is the Parliament which acts as an apex body to hold or decide the government exchequer.
B. ALLOCATION OF TAXATION POWERS
 Parliament levy's taxes on subjects in the Union List exclusively
 States levy taxes on subjects in the State List exclusively
 Parliament and State legislatures can levy taxes on subjects in the Concurrent List
 Parliament levy's taxes on the residuary subjects i.e. Gift tax, wealth tax and expenditure tax
 The powers to levy taxes, to collect proceeds to appropriate the proceeds of taxes are distinct.
 E.g.: income tax is levied and collected by the Centre, proceeds distributed between the Centre
and States.
 Constitutional restrictions on states taxing powers:
 Ceiling on taxes on professions, trades, callings and employments is Rs 2500 per annum
 States can tax consumption and sale of electricity, but not electricity which is
a) Consumed or sold to the Centre
b) Consumed in relation with a railways
 Restriction on taxing sale and purchase of goods:
a) Newspaper sales and purchase cannot be taxed
b) No tax on sale or purchase happening outside the state
i. in the course of imports and exports
ii. during inter-state trade and commerce
 Parliament can declare a tax on the sale and purchase of goods to be of special importance in
inter-state trade and commerce, and then specify conditions which states will have to follow
 President will have to consider and assent to a state law imposing taxes w.r.t. any water or
electricity stored, generated, consumed, distributed or sold by any authority established by the
Parliament for regulating or developing any inter- state river or river valley
C. PROTECTION OF STATE'S INTERESTS
 The Constitution has declared that certain bills can need the Presidents prior permission to be
introduced in the Parliament, This is to protect the interests of the states. The kinds of bills are:
a) A bill which proposes to vary any tax or duty in which states are interested
b) A bill which varies that meaning of the term agricultural income', as defined for the purposes of
the enactments relating to Indian income tax.
c) A bill which affects the principles on which moneys are or may be distributable to states tax/duty
for the purpose of the Centre.
d) A bill which imposes any surcharge on any specified tax/duty for the purpose of the centre.
 "Tax or duty in which the states are interested" means o A tax/duty from which proceeds (whole or
part) are assigned to a state
 A tax/duty by reference to the net proceeds whereof sums are for the time being payable, out of the
Consolidated Fund of India to any state
 Net proceeds means the proceeds of a tax or duty minus the cost of collection which is ascertained
and certified by the CAG
D. BORROWING BY THE CENTRE
 Constitutional provisions:
 The Central government can borrow within or outside upon the security of the Consolidated
Fund of India
 Can give guarantees
 But both within the limits fixed by the Parliament
 No such law has been enacted by the Parliament so far

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 State government can borrow within India (not abroad) upon the security of the Consolidated
fund the State
 Can give guarantees
 Both within the Limits fixed by the state legislature
 Central government can make Loans to any state or give guarantees in respect of loans raised by
states. Any sums for such loans are charged on the Consolidated Fund of India
 A state cannot raise a Loan without the consent of the Centre if there is still outstanding any part
of a Loan made to the state by the Centre or in respect of which a guarantee has been given by
the Centre
E. EFFECTS OF EMERENCIES (CHARGES IN CENTRE-STATE FINANCIAL RELATION)
a) NATIONAL EMERGENCY (Article 352)
 President can modify the constitutional distribution revenues between the Centre and the states,
 Can reduce or cancel the transfer of finances from the Centre to the states
 Modifications continue bill the end of the financial year in which the emergency ceases to operate
b) FINANCIAL EMERGENCY (Article 360)
 Centre can give directions to states
 To observe the specified canon of financial propriety
 To reduce the salaries and allowances of all class of persons serving in the state including high
court judges
 To reserve all money bills and other financial bills for the consideration of the President
F. DISTRIBUTION OF NON-TAX REVENUE
 Receipts from the following non-tax revenues are major sources for the Centre
 Posts and telegraphs  Coinage and currency
 Railway  Central public sector enterprises
 Banking  Escheat and Lapse
 Broadcasting
 Receipts from the following non-tax revenues are major sources for the States
 Irrigation  Forests  Fisheries
 State PSEs  Escheat and lapse
G. GRANTS IN AID TO THE STATES
 There are 3 types of grants-in-aid to the states from the Central Resources by the Constitution. These
are:
i. STATUTORY GRANTS
 Article 275 empowers the Parliament to make grants to states in need of financial assistance, and not
to every state
 Different sums may be fixed for different states
 Charged on the CFI every year
 Constitution has specific provisions for the welfare of STs in a state, or raising the level of
administration of scheduled areas including in Assam
 Grants under Article 275 are given on the recommendation of the Finance Commission
ii. DISCRETIONARY GRANTS
 Article 282 empowers the Centre and the States to make grants for any public purpose, even if it is
not within their legislative competence.
 These are known as discretionary grants, the reason being that Centre is under no obligation to give
these grants and the matter lies within its discretion.
 These grants have a two-fold purpose:
a) To help the state financially to fulfil plan targets.
b) To give some leverage to the Centre to influence and coordinate state action to effectuate the
national plan
 These discretionary grants from the larger part of the Central grants to th estates when Compared
with statutory grants.

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iii. OTHER GRANTS
 These are made for a temporary period
 E.g.: grants in lieu of export duties on jute and jute products in Assam, Bihar, Orissa and West Bengal
for ten years from the commencement of the Constitution.
 Charged on the CFI
 Recommendation of the FC
H. DISTRIBUTION 0F TAX REVENUES
 Centre-state financial relations are given under Articles 264-293.
 Distribution of tax revenue is given under Articles 268, 268A (repealed under GST), 269, 269A, 270,
271, 272 (Repealed earlier
 These have been affected recently by 80th CA 2000, 88th CA 2003 and 101st CA 2017 (GST
amendment; not discussed in Laxmikant)
 80th CA 2000
 To give effect to the recommendations of the 1oth FC
 29% of total revenue from central taxes and duties should go to the states
 Known as 'Alternative Scheme of Devolution'
 Came into effect since April 1, 1996
 88th CA 2003
 Added Article 268A, dealing with service tax
 Added Entry 92-C to the Union List: taxes on services
 Service tax was levied by the centre but collected and appropriated by both the centre and the
state
 101st CA 2017
 Brought many changes in the central state financial relations
 Let us discuss the Articles as they stand now, an then combine all the changes under GST
together in the end.
 Article 268: Taxes levied by the Centre, but collected and appropriated by the State
 This includes the following taxes and duties:
 Stamp duties of bills of exchange, cheques, promissory notes, policies of insurance, transfer of
shares and others.
 Pre-GST: Excise duties on medicinal and toilet preparations, containing alcohol and narcotics.
This has been omitted from the states list and subsumed under GST.
 The proceeds of these duties levied within any state do not form a part of CFI, but are assigned
to the state.
 Article 268-A: Service tax levied by the Centre but collected and appropriated by the Centre and the
states
 This is repealed, Service tax is subsumed under GST.
 Article 269: Taxes Levied and Collected by the Centre but Assigned to the States
 Taxes on sale or purchase of goods (other than newspapers) in the course of inter-state trade or
commerce
 Taxes on the consignment of goods in the course of interstate trade or commerce.
 The net proceeds of these taxes do not form a part of the consolidated fund of India.
 They are assigned to states in accordance with the principles Laid down by the Parliament.
 101st CA 2017: Article 269 empowers the Parliament to make laws related to GST for interstate
trade and commerce
 Article 269A: inserted by the 101st CA 2017
 Levy and collection of goods and services tax in course of inter-State trade or commerce.
 Summary: in case of the inter-state trade, the tax will be levied and collected by the Government
of India and shared between the Union and states as per recommendation of the GST Council.
 Proceeds will not be credited to the Consolidated Fund of India
 Details:

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(1) Goods and services tax on supplies in the course of inter-State trade or commerce shall be
Levied and collected by the Government of India and such tax shall be apportioned between
the Union and e states in the manner as may be provided by Parliament by law on the
recommendations of the Goods and Services Tax Council.
 Explanation:- For the purposes of this clause, supply of goods, or of services, or both in the
course of import into the territory of Indi shall be deemed to be supply of goods, or of
services, or both in the course of inter-State trade or commerce
(2) The amount apportioned to a State under clause (1) shall not form part of the Consolidated
Fund of India.
(3) Where an amount collected as tax levied under clause (1) has been used for payment of the
tax levied by a state under article 246A, such amount shall not form part of the Consolidated
Fund of India
(4) Where an amount collected as tax levied by a State under article 246A has been used for
payment of the tax levied under clause (1), such amount shall not form part of the
Consolidated Fund of the State.
(5) Partiament may, by Law, formulate the principles for determining the place of supply, and
when a supply of goods, or of services, or both takes place in the course of inter-state trade or
commerce
 Article 270: Taxes Levied and Collected by the Centre but Distributed between the Centre and the
States
 All taxes and duties of the Union List except:
a) Duties and taxes mentioned in Articles 26g, 269A and 269
b) Surcharge on taxes and duties referred to in Article 271
c) Any cess levied for a specific purpose.
 Manner of distribution of net proceeds of these taxes and duties is prescribed by the President
on the recommendation of the Finance Commission
 Article 271: Surcharge on Certain Taxes and Duties for Purposes of the Centre
 Can be levied by the Parliament at any time on the taxes and duties mentioned in Article 269 and
270.
 Proceeds go to the Centre exclusively
 Taxes Levied and Collected and Retained by State: Enumerated under state list. They include
 Tax on Land and buildings  Toll
 Capitation taxes  Land revenue
 Tax on mineral rights  Tax on professions, trades and employment.
 Tax on the consumption or sale of electricity  Tax on agricultural income
 Duty on succession to agricultural Land  Tax on entry of goods into a local area
 Tax on vehicles  Stamp duty on documents
 Estate duty on agricultural Land  Fees on the enumerated matters in State list
101st CONSTITUTIONAL AMENDMENT 2017
 Inserted Articles 246(A), 269(A) and 279(A)
 Repealed Article 26R(A)
 Changes in Articles 246(A), 248, 249, 250, 268, and 269
I. Article 246A:
a) Both Union and States in India now have "concurrent powers" to make law with respect to
goods services,
b) The intra-state trade now comes under the jurisdiction of both centre and state; while inter-
state trade and commerce is "exclusively" under central government jurisdiction,
II. Article 248:
 Residuary powers of legislation of the Parliament
 Change: it’s now subject to Article 246A
III. Article 249:
 Power of the Parliament to legislate on matters in the state List in the national interest

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 If RS passes a 2/3rds majority resolution, then the Parliament can make Laws w.r.t. GST in
national interest
IV. Article 250:
 Power of the Parliament to legislate on matters in the state list if a proclamation of emergency is
in operation
 Parliament can make laws w.r.t. GST during emergency period
V. Article 268:
 Taxes levied by the Centre, but collected and appropriated by the state
 This has been omitted from the states list and subsumed under GST.
VI. Article 268-A:
 Service tax levied by the Centre but collected and appropriated by the Centre and the states
 This is repealed, Service tax is subsumed under GST.
VII. Article 269A: Inserted by the 101st CA 2017
 Levy and collection of goods and services tax in course of inter-State trade or commerce
 Summary: in case of the inter-state trade, the tax will be levied and collected by the Government
of India and shared between the Union and states as per recommendation of the GST Council.
 Proceeds will not be credited to the Consolidated Fund of India
VIII. Article 279A: GST Council
 Deals with constitution, membership and organisation of the council, matters for
recommendations, voting procedure, etc.
IX. OTHER CHANGES
 Amendment of Article 286 (Restriction on Imposition of tax),
 Article 366,
 Article 368 (Power to parliament to amend the constitution),
 Sixth Schedule and Seventh Schedule
INTER-GOVERNMENTAL TAX IMMUNITIES
 Like any other federal Constitution, the Indian Constitution also contain the rule of ‘immunity
from mutual taxation’ and makes the following provisions in this regard:
a) Exemption of Central Property from State Taxation
 The property of Centre is exempted from all taxes imposed by a state or any authority within a
state like municipalities, district boards, panchayats and so on.
 But the Parliament is empowered to remove this ban.
 The word ‘property’ includes lands, buildings, chattels, shares, debts, everything that has a
money value, and every kind of property—movable or immovable and tangible or intangible.
 The corporations or the companies created by the Central government are not immune from
state taxation or local taxation. The reason is that a corporation or a company is a separate
legal entity.
 Property may be used for sovereign (like armed forces) or commercial purposes.
b) Exemption of State Property or Income from Central Taxation
 The property and income of a state is exempted from Central taxation. Such income may be
derived from sovereign functions or commercial functions.
 Centre can tax the commercial operations of a state if Parliament so provides.
 However, the Parliament can declare any particular trade or business as incidental to the
ordinary functions of the government and it would then not be taxable.
 Property and income of local authorities situated within a state are not exempted from the
Central taxation. Similarly, the property or income of corporations and companies owned by a
state can be taxed by the Centre.
 SC (1963): Held that the immunity granted to a state in respect of Central taxation does not
extend to the duties of customs or duties of excise. In other words, the Centre can impose
customs duty on goods imported or exported by a state, or an excise duty on goods produced
or manufactured by a state.
TRENDS IN CENTRE-STATE RELATIONS

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 Till 1967, Centre-State relations ran smoothly, facilitated by one-party rule.
 1967: Congress defeated in 9 state elections
 Newly elected state governments of different parties resisted centralisation, demanded state
autonomy Tensions and conflicts in Centre-state relations arose
TENSION AREAS
 Appointment and dismissal of governor and their discriminatory and partisan role
 Imposition of President's rule in states
 Use of Central forces in states to maintain Law and order
 Reservation of state bills for the consideration of the President
 Discrimination in financial allocations to States
 Role of Planning Commission in approving state projects
 Management of All India Services
 Sharing of finances between centre and states
 Encroachment by the Centre on state List
ADMINISTRATIVE REFORMS COMMISSION
 Set up 1966
 6 membered Commission
 Chairperson Morarji Desai
 No action was taken by the Centre on the recommendations of the Commission
 Some prominent recommendations:
 Establishment of the Inter-State Council under Article 263
 Appointment of experienced, non-partisan people as governors
 Financial devolution
 Delegation of powers to states
 Deployment of Central Armed forces in the states either on their request or otherwise.
RAJAMANNAR COMMITTEE
 By the Tamil Nadu government (DMK) in 1969
 Report 1971
 Identified reasons for prevailing unitary trends
 Some Constitutional provisions one party rule
 State's fiscal dependence on the centre
 Inter-State Council should be set up
 Finance Commission should become a permanent body
 Planning Commission should be disbanded
 Article's relating Presidents Rule should be omitted
 State ministry hold office during the pleasure of the governor- this should be eliminated
 State List should get more subjects
 Residuary powers to states
 Abolishment of All India Services
 Central government ignored the recommendations

ANANDPUR SAHIB RESOLUTION


 1973: Akali Dal Resolution
 Political and religious demands
 Meeting in Anandpur Sahib in Punjab
 Demanded restriction of the Centre's jurisdiction to only defence, foreign affairs, communications
and currency
 All residuary powers should be with states
WEST BENGAL MEMORANDUM
 1977: The West Bengal government published a memorandum on Centre-state relations

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 Sent it to the Central government
 Some suggestions of the memorandum
 Word federal should replace the word union in the Constitution
 Restriction of the Centre's jurisdiction to defence, foreign affairs, currency, communications, and
economic co-ordination
 All other subjects with the states
 Residuary subjects with the states
 Provisions regarding Presidents Rule and Financial Emergency should be repealed
 State's consent should be obligatory for formation of new states of reorganisation of existing
states
 75% of the centre's total revenue should be allocated to the states (42% now only)
 RS should have equal powers of the LS
 All-India services should be abolished
 The Central government did not accept the recommendations of the memorandum.
SAKARIA COMMISSION
 1983: 3 member commission by the Central government to study Centre-state relations
 Chair: RS Sarkaria, retired SC judge
 Final report 1987
 The Commission did not favour structural changes
 Regarded the existing constitutional provisions sound
 Rejected the demand for curtailing the powers of the
 Strong centre needed to protect national unity and Centre integrity o But warned against over-
Centralisation
 Made 247 recommendations to improve centre state relations, of which the Central government
implement over 150
 Some important recommendations
 Setting up an Inter-State Council under Article 263 of the Constitution This was set up in 1990.
 Article 365 to be used sparingly
 All India services should be strengthened, more services created
 Residuary powers of taxation should stay with the Centre while other residuary should be put in
the Concurrent list
 The President should be reasons if s/he withholds assent to the state government
 National Development Council should be reconstituted
 Zonal councils should be constituted afresh to promote the spirit of federalism
 Centre should consult states before deploying its armed forces. But it can do so without their
consent as well
 Centre should consult states before making a law on a Concurrent list subject
 It should be made constitutionally mandatory to consult the CM before appointing the state
governor
 Net proceeds of corporation tax should be shared
 The governor cannot dismiss the council of ministers with states if it enjoys the support of the
majority of the assembly
 A governor's term up to 5 years should not be disturbed without compelling reasons
 Commissions of inquiry against chief ministers should only be instated on the demand of the
Parliament
 Centre should not levy surcharge on income tax except for a very specific purpose for a limited
time
 Division of functions between the Planning Commission & the Finance Commission should
continue
 Implementing the 3 Language formula in spirit
 Decentralisation of the operations of radio and television without granting than autonomy
 No change in the role of the RS and Centre’s power to reorganise states

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 Commissioner for linguistic minorities should be activated
 Central govt has implemented 180 out of 247 recommendation. The most important is the
establishment of the Inter-State Council in 1990
PUNCHHI COMMISSION
 Second commission on Centre-State relations by the Government
 Set up in 2007 Chair: Madan Mohan Punchhi, former CJI
 Report: 2010
 1456 pages in 7 volumes
 Conclusion: cooperative federalism is key for sustaining India's unity, integrity and development.
 Over 310 recommendations
TERMS OF REFERENCE (ToR)
 Examining the existing Constitutional arrangement between the Union and the states
 Making recommendations to the changes and measures needed
 Examining the need for freeing inter-state trade to establish a unified and integrated domestic
market
 Need for setting up a Central Law Enforcement Agency empowered to take up Suo Moto
investigation of crimes having inter-state and/or international ramifications with serious implications
on national security
 Examining the role, responsibility and jurisdiction of the Centre vis-a-vis states in the following cases:
a) Major and prolonged outbreak of social conflict leading to violence, like communal or caste
violence
b) Planning and implementing mega projects Like river interlinking etc, which can take up to 15-20
years
c) Devolution of powers and autonomy to PRIs and ULBs, including autonomous bodies under the
6th Schedule
d) Independent planning and budgeting at the District Level
e) Approaches and policies based on positive discrimination in favour of backward states
RECOMMENDATIONS
1) There is a need to have a broad agreement between the centre and the state to facilitate effective
law making under the Concurrent List.
2) Union government should be restrained in Law making on State and Concurrent List subjects
3) Only make Laws on subjects for which it is absolutely necessary to achieve uniformity of policy in
demonstrable national interest
4) Inter-state council should looks into matters of overlapping jurisdictions.
5) President should decide on state bills reserved for her consideration within 6 months (same period is
prescribed to the state legislature to consider bills under article 101)
6) There should be a Law governing the Parliamentary power to legislate on the states List for
implementing international treaties.
7) The obligations on state finances arising out of treaties and agreements should be a permanent term
of reference to the Finance Commission
8) While selecting Governors, the Central Government should adopt the following strict guidelines as
recommended in the Sarkaria Commission report and follow its mandate in letter and spirit
 S/he should be eminent in some walk of Life
 S/he should be from outside the state
 S/he should be a detached figure and not too intimately connected with the Local politics of the
states
 S/he should not have taken to great a part in politics generally, and particularly in the recent
past.
9) Governor's should have a fixed a tenure of five years. Their removal should not be at the whims of he
Central Government.

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10) The procedure laid for the impeachment of President should be, mutatis mutandis, made applicable
for the Governor as well.
RECOMMENDATIONS (Part 2)
1) Guidelines for Governors role in appointment of the CM
 The party or combination of parties which commands in case of a hung assembly: the widest
support in the Legislative Assembly should be called upon to form the Government.
 If there is a pre-poll alliance or coalition, it should be treated as one political party If such a
coalition obtains a majority, the leader of such a coalition shall be called by the Governor to form
the Government
 In case no party or pre-poll coalition has a clear majority, the Governor should select the CM in the
order of preference as follows:
a) The group of parties which has a pre-poll alliance commending the largest number
b) The largest single party staking a claim to form the government with the support of others.
c) A post-electoral coalition with all partners joining the government.
d) A post electoral alliance with some parties joining the government and the remaining including
independents supporting the government from outside.
2) Article 163 does not give the Governor a general discretionary power to act against or without the
advice of her council of ministers. The area for exercise of discretion is very Limited
 Even in the limited area, the governor should not act arbitrarily
 His choices must be reasonable, in good faith and cautious.
3) For dismissal of the C.M, the Governor should invariably insist on the CM first proving her majority on
the floor of the house in a prescribed time period
4) Governor should have the right to sanction for prosecution of a state minister against the advice of
the Council of Ministers if the Cabinet decision appears to the Governor to be motivated by bias in
the face of overwhelming material.
5) The convention of Governor's acting as Chan of Universities and holding other statutory provisions
should be done away with. His role should be confined to constitutional provisions only.
6) Governor should decide in 6 months whether bills passed by the State Legislature need the
consideration of the President or not.
RECOMMENDATIONS (Part 3)
1) When an external aggression or internal disturbance paralyses the state administration, creating a
situation of potential breakdown of constitutional machinery in the state, all alternative courses
available to the Union for discharging its paramount responsibility under Article 355 should be
exhausted to contain the situation. Article 356 should only be used to rectify the actual breakdown of
constitutional machinery
2) SC guidelines in SR Bommai case (1994) should be followed for invoking Article 356. This would help
smooth Centre-state relations
3) Article 352 and 356 should only be used as a measure of the last resort.
 There should be provisions that guide the Centre to fulfil its duty under Article 355 to deal with
situations that do not warrant the use of Article 362 and 356. Perhaps a framework for a localised
emergency, which allows the state government to continue, as well as the Central government to
respond to the issue at hand locally and specifically
4) Article 263 should be amended to make the Inter-State Council a credible, powerful and fair
mechanism for management of inter-state and Centre-state difference.
5) Zonal councils should meet at least twice a year with an agenda proposed by states concerned to
maximise co-ordination and promote harmonisation of policies and action having inter-state
ramification.
 The Secretariat of the Inter-state Council can function as the Secretariat of the Zonal Councils as
well
6) New all-India services in sectors like health, education, engineering and judiciary should be created
RECOMMENDATIONS (Part 4){Fiscal Matters}

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1) Empowered Committee of Finance Ministers of states proved to be a successful experiment in inter-
state co-ordination on fiscal matters. Similar models should be institutionalised in other sectors as
well. A forum of CMs, chaired by one CM in rotation can be similarly though about to coordinate
policies of sectors Like energy, food, education, environment etc.
2) Factors inhibiting the RS as a representative of forum of states should be removed for modified. Rs
offers immense potential to negotiate acceptable solutions to the friction points which emerge
between the Centre and the States in fiscal, legislative and administrative relations,
3) A balance of powers between states is desirable and this is possible by equality of representation in
the RS.
4) The scope of devolution of powers to local bodies to act as institutions of self-government should be
constitutionally defined through appropriate amendments.
5) Future Central legislations involving states involvement should provide for cost sharing as in the case
of RTE Act. Existing such legislations should be suitably amended to provide for cost sharing.
6) The royalty rates on major minerals should be revised at Least every 3 years without delay. States
should be properly compensated for any delay
7) The current ceiling on professional tac should be done away with why a constitutional amendment.
8) The scope for raising more revenue from the taxes mentions in article 268 should be examined
afresh.
RECOMMENDATIONS (Part 5)
1) To bring greater accountability, all fiscal legislation should provide for an annual assessment by an
independent body and he reports should be Laid before the Parliament/state legislature.
2) Considerations specific to Terms of Reference of the Finance Commission should be even handed as
between the Centre and the States. There should be an effective mechanism to involve the states in
finalisation of the ToR of the FC.
3) The Central Government should review all the existing messes and surcharges with a view to bring
down their share in the gross tax revenue.
4) The FC division in the Ministry of Finance should be converted into a full-fledged department, serving
as thee permanent secretariat for the FC
5) Steps should be taken for the setting up of an Inter-state Trade and Commerce Commission under
Article 307. This commission should be vested with both advisory and executive roles with decision
making powers. Asa Constitutional body, the decisions of the Commission should be final and binding
on states and the Union. Appeal can Lie with the SC.
 Recommendations regarding planning (accepted)
 Because of the close linkages between the plan and non-plan expenditure, an expert committee may
be appointed to look into the issue of distinction between the plan and non-plan expenditure.
 Better cooperation between the FC and the Planning Commission o
 PCs role should be coordination rather than micro managing sectoral plans of the Central ministers
and states
PYQs
PRELIMS 95. The Parliament of India acquires the power to legislate on any item in the State List in
the national interest if a resolution to that effect is passed by the
(a) Lok Sabha by a simple majority of its total membership
(b) Lok Sabha by a majority of not less than two-thirds of its total - membership
(c) Rajya Sabha by a simple majority of its total membership
(d) Rajya Sabha by a majority of not less than 2/3rd of its members present and voting

PRELIMS 21. The Parliament can make any law for whole or any part of India for implementing
international treaties
(a) with the consent of all the States
(b) with the consent of the majority of States
(c) with the consent of the States concerned
(d) without the consent of any State

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INDIAN POLITY-M.LAXMIKANT
CHAPTER-15
(INTER-STATE RELATIONS)
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INTRODUCTION
 Cooperative relations between states are crucial for the harmonious functioning of India's federal
system.
 Thus, the Constitution makes provisions regarding mutual recognition of public acts etc., inter-state
water disputes, inter-state trade and commerce and coordination between states through inter-state
councils.
 Statutory zonal councils also promote inter-state cooperation and coordination

INTER STATE WATER DISPUTES


 Article 262: Adjudication of disputes relating to waters of inter-state rivers or river valleys
 Parliament may by law provide for the adjudication of any dispute or complaint with respect to the
use, distribution and control of waters of any inter-state river and river Valley
 Parliament may also provide that neither the Supreme Court not any other court is to exercise
jurisdiction in respect of any such dispute or complaint
 Under Article 262, the Parliament has enacted two Laws
a) The River Boards Act 1956:
 Provides for establishment of river boards for the regulation and development of inter-
state river and river valleys
 Central government can establish a river board on the request of the states concerned
 Till date, no river board has been created
b) The Inter-State Water Disputes Act 1956 :
 Empowers the Central government to set up an ad-hoc tribunal adjudicating an inter-states
water dispute
 Section 11 of the Act excludes the SC from jurisdiction in respect of water disputes referred
to a tribunal under the Act
 The decision of the tribunal is to be final and binding
 The tribunal will have powers of a civil court, powers to make schemes for implementing its
decisions, etc.
 The Inter-states River Water Disputes (Amendment) Bill 2017 is currently pending in the
Parliament
 Till now, the Central government have set up tribunals. the Central government have set
up 8 tribunals.
 It has agreed to set up a 9th tribunal for adjudication of dispute on Mahanadi River Waters
between the states of Odisha and Chhattisgarh.
INTER-STATE WATER DISPUTE TRIBUNALS SO FAR
TRIBUNAL YEAR OF SETUP STATES INVOLVED
Krishna Water Disputes Tribunal 1969 Maharashtra, Karnataka, Andhra Pradesh(AP)
Godavari Water Disputes Tribunal 1969 Maharashtra, Karnataka, MP, AP and Odisha
Narmada WDT 1969 Rajasthan, Gujarat, MP and Maharashtra
Ravi and Beas WDT 1986 Punjab and Haryana
Cauvery WDT 1990 Kerala, Karnataka, TN and Puducherry
Second Krishna WDT 2004 Maharashtra, Karnataka, AP
Vansadhara WDT 2010 Odisha and AP
Mahadayi WDT 2010 Goa, Karnataka and Maharashtra
INTER-STATE COUNCILS
 Article 263: Provisions with respect to Inter-State Councils

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 If at any time it appears to the President that the public interests would be served by the
establishment of a Council charge with the duty of
(a) inquiring into and advising upon disputes which may have arisen between States;
(b) investigating and discussing subjects in which some or all of the states, or the Union and one or
more of the states, have a common interest; or
(c) making recommendations upon any such subject and, in particular, recommendations for the
better co-ordination of policy and action with respect to that subject .
 It shall be lawful for the President by order to establish such a Council, and to define the nature of
its duties to be performed by it and its organisation and procedure.
 The Councils duty is complementary to the SC's jurisdiction under Article 131 to settle disputes between
the Union and the States or between States.
 The Council's function is advisory, unlike the SC's which is binding
 The President has established the following councils under Article 263:
a. Central Council of Health
b. Central Council of Local Government and Urban Development
c. Four Regional Councils for Sales Tax for Northern, Eastern, Western and Southern Zones
 Sarkaria Commission on Centre-State relations strongly recommended the establishment of a
permanent Inter-State Council under Article 263
 To be called Inter-Governmental Council
 To discharge duties enumerated in Article 263 (b) and 263 (c)
 VP Singh (Janata Dal) government established the Inter-State Council in 1990.
 Members:
a. PM (Chairperson)
b. Chief Ministers of all States
c. Chief Ministers of UTs having legislative assemblies
d. Administrators of UT's without legislative assemblies
e. Governors of States under President's Rule
f. Six Central cabinet Ministers, including Home Minister, rest nominated by the President
g. 5 Minister of Cabinet rank/Ministers of state to be permanent invitees
 This Council to be a recommendatory body on issues relating to inter- state, Centre-state and
Centre-UT relations
 Promote coordinating
 It can also deliberate upon other matters referred to it by the Chairperson
 Council has to meet at least thrice a year
 Meeting to be held on camera
 All questions to be declared & decided by consensus
 Council set up a Standing Committee in 1996 for continuous consultation
 Members:
a. Union Home Minister (Chairperson)
b. 5 Cabinet Ministers
c. 9 CMs
 1991: Inter-state Council Secretariat set up, headed by a secretary to the government of India, to
assist the council
PUCLIC ACTS, RECORDS AND JUDICIAL PROCEEDINGS
 Jurisdiction is each state is its own territory only
 Thus, acts of one state may not be recognised in another
 To avoid such confusions, the Constitution has a ‘Full Faith and Credit’ clause (Article 261)
 Full faith and credit is to be given throughout the territory of India to public acts, records and judicial
proceedings of the Centre and every state,
 "Public acts" includes both legislative and executive acts of the government
 "Public record" includes any official book, register or record made by a public servant in the
discharge of his official duties

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 Parliament to determine, by Law, the manner in which and the conditions under which such acts,
records and proceedings are to be proved and their effect.
 Final judgements and orders of civil courts in any part of India are capable of execution anywhere
within India without the necessity of a fresh suit upon the judgement.

INTER STATE TRADE COMMERCE


 Articles 301-307
 Part XIII
 Deal with trade, commerce and intercourse within the territory of India
 Article 301: Freedom of trade, commerce and intercourse and guarantees freedom from all
restrictions except those provided in other provisions of the Constitution (Articles 302-305)
 Article 302: Power of the Parliament to impose restrictions on trade, commerce and intercourse
between states or within a state in public interest
 Article 303: Restrictions on the legislative powers of the Union and of the states with regard to trade
and commerce. Parliament and State legislatures cannot give preference to one state over another or
discriminate between state unless there is a scarcity in any part of India
 Article 304: Restrictions on trade, commerce and intercourse among States
 State legislature can impose reasonable restrictions upon freedom of trade, commerce and
intercourse in public interest
 A bill for this purpose needs prior sanction of the President before introduction.
 State legislature cannot give preference to one state over another or discriminate b/w states.
 State legislature can impose on goods imported from other states or UTs to any tax to which
similar goods manufactured in that state are subject. Discriminatory taxes cannot be imposed
 Article 305: Saving of existing laws and laws providing for certain state monopolies
 The parliament or state legislature can make laws for carrying on any trade, business, industry or
service, whether to the exclusion, complete or partial, of citizens or otherwise.
 Article 306: Power of certain states in Part B of the First Schedule to impose restriction on trade and
commerce (Repealed)
 Article 307: Appointment of authority for carrying out the purposes of Article 301-304
 By Parliament
 So far, no such authority appointed
ZONAL COUNCILS
 These are statutory bodies under the State’s Reorganisation Act of 1956
 The act divided the country into 5 zones i.e. Northern, Central, Eastern, Western and Southern and
provided a zonal council for each zone
 Factors of consideration while forming zones:
a. The natural divisions of the country
b. The river systems and means of communication
c. The cultural and Linguistic affinities
d. Requirements of economic development
e. Security
f. Law and order
 Members of zonal councils: Have right to vote in meeting
a. Union Home Minister (common Chairperson of all Zonal councils)
b. Chief Ministers of all the States in the zone (VC for one year in rotation)
c. Two other ministers from each state in the zone
d. Administrator of each union territory in the zone
 Advisors of zonal councils (without the right to vote):
a. A person nominated by the Planning Commission(now NITI Aayog)
b. Chief Secretary of each state government in the zone
c. Development commissioner of each state in the zone

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 Aim: To promote cooperation and coordination between states, UTs and the Centre discuss and
make recommendations regarding matters like economic and social planning, minorities, border
disputes etc . Only deliberative and advisory bodies

 Objectives:
 To achieve emotional integration of country
 To help arrest the growth of acute state- consciousness, regionalism, Linguist, and particularistic
trends
 To help remove the after-effect of separation in new states the states so that the process of
reorganisation, integration and economic advancement may synchronise
 To enable the Centre and state to cooperate with each other in social and economic matters and
exchange ideas and experience in order to evolve uniform policies
 To cooperate with each other in the successful and speedy execution of major development
projects
 To secure a level of political equilibrium between different regions of the country
NORTH EASTERN COUNCIL
 Created by the North-Eastern Council Act of 1971
 Members: o Assam, Manipur, Mizoram, Arunachal Pradesh Nagaland, Meghalaya, Tripura and Sikkim
 Functions Like that of the other zonal councils
 Few additional functions:
 Formulate a unified and coordinated regional plan covering matters of common importance
 Review periodically the measures taken by the member' states for maintenance of security and
public order in the region
HEADQUARTERS OF ZONAL COUNCILS
ZONE MEMBERS HEADQUARTER
North J&K, Himachal Pradesh, Haryana, Punjab, Rajasthan, Delhi, Chandigarh New Delhi
Central UP, Uttarakhand, Chhattisgarh, MP Allahabad
East Bihar, Jharkhand, West Bengal, Odisha Kolkata
West Gujarat, Maharashtra, Goa, Dadar and Nagar Haveli, Daman and Diu Mumbai
South Andhra Pradesh, Karnataka, Tamil Nadu, Kerala, Puducherry Chennai

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INDIAN POLITY- M.LAXMIKANT
CHAPTER-16
(EMERGENCY PROVISIONS)
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WHY EMERGENCY PROVISIONS
 To enable the Central government to meet abnormal situations efficaciously
 To safeguard the sovereignty, unity, integrity and security of the country
 To secure the democratic political system
 To secure the Constitution
 Emergency converts the federal structure of India into a unitary structure without a formal
Constitutional Amendment.
 This is a unique feature of the Indian Constitution
EMERGENCY PROVISIONS
A. National Emergency
 Article 352
 Grounds: war, external aggression, armed rebellion
B. State emergency/Presidents rule
 Article 356: failure of the Constitutional machinery
 Article 365: failure to comply with the directions of the Centre
C. Financial emergency
 Article 360: threat to the financial stability or credit of India
NATIONAL EMERGENCY
 Article 352
 President can declare emergency on the grounds of
 War
 External aggression
 Armed rebellion (44th CA 1978; earlier 'internal disturbances')
i. Term replaced as it was vague.
ii. The 1975 Emergency was declared on grounds of 'internal disturbances
 President should be satisfied that there is an imminent danger
 Must receive a written recommendation of the Cabinet to declare emergency
 1975: PM Gandhi advised the President to declare Emergency without consulting her Cabinet
 Thus 44th CA 1978 made written recommendation of the Cabinet compulsory
 38th CA 1975: President can declare emergency whether or not an emergency declaration is already in
operation
 President can declare emergency for whole of the country, or a part of it
 Part of it provision added by the 42nd CA 1976
 1980 Minerva Mills case: Declaration of emergency can be challenged on the grounds of
 Malefice
 Absurd or Perverse
 Based on Wholly extraneous and irrelevant facts
 Internal Emergency; when a national emergency is declared on grounds of armed rebellion
 External Emergency: when a national emergency is declared on grounds of war or external aggression
A. PARLIAMENTARY APPROVAL FOR NATIONAL EMERGENCY
 Recap: President declares emergency on written recommendation of the Cabinet
 Must be approved in one month by both Houses of the Parliament
 Earlier two months, changed by the 44th CA

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 If LS is dissolved when proclamation of emergency happens, then it can approve it within one month
after reconstitution, if the RS has approved it in the meantime.
 If approved, continues for 6 months.
 Needs to be approved every six months (44th CA 1978)
 Can be reproved as many times as the Parliament wants
 If LS dissolves after continuance of Emergency is approved, then the Emergency continues until one
month after the LS re-constitutes, if the RS has approved the proclamation meanwhile
 Every resolution needs to be passed by a special majority of each House of the Parliament (44th CA
1978)
B. REVOCATION OF NATIONAL EMERGENCY
 By President
 At any time
 Without Parliamentary approval
 If the LS passes a resolution disapproving the Emergency, then the President must revoke it. (44th CA
1978)
 44th CA 1978: If 1/10 of Ls members give a written notice to the Speaker (President if House not in
session
 Then a special sitting of the House to be held within 14 days
 To discuss a resolution to disapprove the continuation of the Emergency
 Disapproval only needs concurrence of the LS, unlike approval, which needs both Houses.
 Disapproval: simple majority
 Approval: special majority
C. EFFECTS OF A NATIONAL EMERGENCY
1. CENTRE-STATE RELATIONS
a) Executive:
 Emergency: Centre can give executive directions to the State regarding any' matter
 Normal Times: on certain matters
 State governments not suspended, but brought under the complete control of the Central
government
b) Legislative:
 Parliament can make Laws on any subject in the State List o State governments can continue
making Laws, but their laws can be overridden by the Parliament
 Parliamentary laws of state subjects are valid until 6 months after the Emergency has ended
 President can issue ordinances on state subjects if the Parliament is not in session
 Parliament can impose powers and outings upon the Centre, or its authorities, to engage with
matters of the State List
 42nd CA 1976: the above executive and legislative consequences extend to the entire territory
of India during emergency, irrespective of whether 'The emergency is operative in the entire
territory
c) Financial:
 President can change the constitutional distribution of revenues
 Reduce or cancel transfers to states from the Centre
 Changes to be operative till the end of the financial year after the Emergency ends
 Presidents order has to be laid before both Houses of the Parliament
2. LIFE OF THE LS & STATE ASSEMBLIES
 Lok Sabha's Life during Emergency:
 Can be extended beyond s years by one year at a time by the Parliament
 Extension ends 6 months after the Emergency has ended
 5th LS: 1971-1977

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 Parliament can also extend the term of any state legislative assembly
 One year at a time
 Extension ends 6 months after the Emergency has ended

3. FR DURING EMERGENCY
 Discussed under Article 358 and 359
 Article 358: suspension of rights under Article 19 during emergency
 Article 359: suspension of other Fundamental rights, except those under Article 20 and 21
a) ARTICLE 358
 Article 19 is automatically suspended when a national emergency is declared
 ONLY on grounds of external aggression or war, not on grounds of armed rebellion
(44th CA 1978)
 Only those laws which are related to the Emergency are protected from being
challenged, not other Laws
 Executive action is protected
 No separate order is needed
 When emergency ends, Article 19 is automatically revived
b) ARTICLE 359
 Suspension of other FRs
 Except Article 20 and 21
 These rights need to be specified in a Presidential Order
 Right to seek remedy for them is suspended
 Suspended for whole or part of the duration of the emergency
 Suspended in whole or part of the territory in which Emergency is operational
 Presidential order should be laid before each house of the Parliament
 When the Presidential order ceases to operate, any, or any part of the country Law made
under it in derogation of FRs also ceases to operate
 44th CA 1978:
 President cannot suspended the right to move to court for the enforcement of Article
20 and 21
 Only those Laws which are related with the emergency are protected from being
challenged and no other Laws
 Executive action under such Laws is protected
D. CHANGES UNDER 44th CA
 Declaration of national emergency must be approved in one month by both Houses of the
Parliament. Earlier two months
 Grounds for declaration: Armed rebellion earlier internal disturbances')
 Term replaced as it was vague.
 The 1975 Emergency was declared on grounds of 'internal disturbances
 President can only declare emergency after a written recommendation of the Cabinet
 Periodic approval by the Parliament.
 Earlier, Emergency operation as long as the Executive desired
 Every continuation resolution must be passed by a special majority by each House of the
Parliament.
 Earlier, simple majority
 Article 19 is automatically suspended when a national emergency is declared
 Changes by 44th CA 1978
 ONLY on grounds of external aggression or war, not on grounds of armed rebellion

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 Only those laws which are related to the Emergency are protected from being challenged,
not other Laws. Executive action is protected
 President cannot suspended the right to move to court for the enforcement of Article 20 and 21
 President's Rule
 Beyond one year, Presidents Rules can be extended by 6 months at a time only when 2
conditions are fulfilled
 National Emergency should be operation in whole of India, or in the state, or in any part of
the state
 Election Commission must certify that the general elections to the legislative assembly of the
concerned state cannot be held on account of difficulties
 Financial Emergency
 Article 360: President can proclaim a financial emergency it o
 S/he is satisfied that the financial stability or credibility of India or any part of its territory is
threatened
 Satisfaction of the President is subject to judicial review
E. DECLARATIONS MADE SO FAR
 1962: on account of Chinese aggression
 1965: another proclamation during war with Pakistan
 grounds; external aggression (Both)
 Revoked: January 1968 (Both)
 1971: Attack by Pakistan
 Grounds: External Aggression, Revoked: 1977
 1975: Proclamation on grounds on internal disturbances
 Revoked: 1977
 Shah Commission did not justify the declaration of emergency
 Thus, the 44th CA, which introduced many Limitations over Emergency Powers
PRESIDENT’S RULE
A. GROUNDS OF IMPOSITIONS
 Article 355: Centre has a duty to ensure that the government of every state is run in accordance
with the Constitution
 Article 356: Centre can take over a state government on grounds of failure of constitutional
machinery.
 Presidents Rule, state Emergency, constitutional Emergency
 Article 365: President can issue a proclamation if s/he is satisfied that the government of the state
cannot be carried on under the provisions of the Constitution
 If the state fails to comply with the directions of the Centre
 Can act with or without the Governor's report
B. PARLIAMENTARY APPROVAL
 Needs to be approved by both Houses of the Parliament with 2 months
 If Ls is dissolved at the time of proclamation, it can approve it within one month of reconstitution
if the RS has approved it in the meantime
 Every approval and continuation needs a simple majority
C. DURATION
 6 months if approved by both Houses
 Can be extended for maximum 3 years, with Parliamentary approval every 6 months
 If LS is dissolved in the middle, then continuation resolution within 1 month of its reconstitution if
the RS has approved it in the meantime

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44th CA 1978: beyond one years, Presidents Rules can be extended by 6 months at a time only
when 2 conditions are fulfilled
i. National Emergency should be operation in whole of India, or in the state, or in any part of
the state
ii. Election Commission must certify that the general state cannot be held on account of
difficulties elections to the legislative assembly of the concerned state cannot be held on
account of difficulties
D. REVOCATION
 By the President at any point of time
 Does not need Parliamentary approval
E. CONSEQUENCES: Extraordinary powers to the President. Such as:-
 Take powers of the state government Governor, or any other executive
 Can transfer powers of the state legislature to the Parliament
 Take other necessary steps including suspension of constitutional provisions relating to anybody or
authority in the state
 State council of ministers headed by the Chief Minister is dismissed
 Governor + chief secretary/advisors appointed by the President carries on the 'administration on
behalf of the President
 President can suspend or dissolve the state legislative assembly
 Parliament deals with state legislative bills and budget
 When the state legislature is suspended/dissolved
 Parliament can delegate the legislative powers of the state to the President or any other
authority specified by him
 If powers are delegated, then the President/other authority can make Laws conferring powers
and imposing duties on the Centre or its officers and authorities
 If LS is not in session, then President can authorise expenditures from the state consolidated fund
(pending sanction by the Parliament) o
 President can promulgate ordinances if Parliament is not in session
 Laws made by Parliament/President/other authority continue to be operative after President's
Rule is revoked
 They can be repealed/altered/re-enacted by the state
 Powers of the High Court and its constitutional legislature provisions cannot be suspended by
the President
F. USES OF ARTICLE 356
 Used over 100 times
 Often arbitrarily, for political and personal reasons
 Become controversial
 First use: 1951 Punjab
 Ambedkar hoped that Article 356 would remain a dead-letter, and be used only as a last resort
 1977: Janata Party headed by Morarji Desai imposed President's Rule in 9 states which were being
ruled by the Congress Party
 Grounds: the state assemblies no Longer represented the wishes of the electorate
 1980: Congress came to power and did the same
 1992: Congress government at the Centre imposed President's rule on 3 BJP ruled states: Madhya
Pradesh, Rajasthan and Himachal Pradesh
 Grounds: these states were not implementing the ban imposed by the Centre on religious
organisations
 1994: SR Bommai case
 SC upheld the validity of the above proclamations of Presidents Rule

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 Secularism is a basic feature of the Constitution
 Later, the SC did not uphold the imposition of President's Rule in other cases Like on Nagaland
in 1988, etc
 38th CA 1975
i. Satisfaction of the President in invoking Article 366 is final and conclusive
ii. Cannot be challenged in any court on any ground
 44th CA 1978
i. This provision was deleted
ii. The Presidents satisfaction is not beyond judicial review
 In the 1994 SR Bommai case, the Supreme Court created many provisions regarding imposition
of Presidents rule.
G. SR BOMMAI CASE :SCOPE OF JUDICIAL REVIEW
 SC Laid propositions on imposition of President's Rule in the state under Article 356
 Presidential proclamation is subject to judicial review
 Satisfaction of the President has to be based on relevant material. Can be struck down if
irrelevant, extraneous, malefice or perverse
 Centre has to prove that relevant material exists to justify imposition of President's Rule
 Court can only see if the material is relevant to the action; cannot see if it is correct or adequate
 If the Court holds that the Presidential proclamation was unconstitutional and invalid, it can
restore the dismissed state government and revive the state Legislative assembly
 State legislative assembly can be dissolved only after the Parliament has approved the
Presidential proclamation.
 Until then, the President can only suspend the assembly
 Secularism: a basic feature of the Constitution
 If a state government is pursuing anti-secular policies, it can be put under President's Rule
 Only the floor of the House can decide on the question of the state legislative assembly Losing
confidence
 Ministry should not be unseated until then
 When a news political party assumes power at the Centre, it does not have the power to
dismiss state governments run by other political parties
 Article 356 entails exceptional powers, and should be used only occasionally
H. CASES OF PROPER AND IMPROPER USE
 SC in SR Bommai case gave a List of situations where the use of Article 356 is proper or improper
based on the report of the Sarkaria Commission on Centre-State Relation (1988)
a. Proper:
 If there is a Hung Assembly (no party secures a majority after state elections)
 Party which has the majority declines to form the government, and 'the Governor cannot find a
coalition ministry commanding power
 A constitutional direction by the Centre is disregarded by the State
 If the state government deliberately acts against the Constitution, or is tormenting a violent revolt
i.e. Internal subversion
 The state government refuses to discharge its constitutional obligations, endangering the security
of the State i.e. Physical breakdown
b. Improper:
 A ministry resigns or is dismissed on losing majority support, and the governor recommends
President's Rule without probing the possibility of an alternative ministry
 Governor recommends President's Rule without allowing the ministry to prove its majority in the
Assembly
 If the ruling party in the state assembly has suffered a defeat in the LS elections (e.g.: in 1977,
1980)

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 Internal disturbances not amounting to internal subversion or physical breakdown
 Maladministration; allegations of corruption against the ministry financial exigencies by the state
 If the state government is not given prior warning, except in cases of extreme urgency leading to
disastrous consequences
 If President's Rule is imposed to sort intra-part problems of the ruling party, or for a purpose that s
irrelevant to what has been allowed or by the Constitution
FINANCIAL EMERGENCY
A. GROUNDS OF DECLARATION
 Article 360: President can proclaim a financial emergency it S/he is satisfied that the financial
stability or credibility of India or any part of its territory is threatened
 44th CA 1978: Satisfaction of the President is subject to judicial review
B. PARLIAMENTARY APPROVAL
 Both Houses must approve the Presidents proclamation within 2 months
 If LS is dissolved, the it must approve it within 30 days of reconstitution, given that the RS
approves it in the meantime
 Simple majority needed
C. REVOCATION
 Does not need parliamentary approval
 Can be revoked by the President at any time
 Can continue indefinitely: repeated Parliamentary approval is not required
D. EFFECTS
 Centre can direct states to observe financial propriety
 The executive authority of the Centre extends to directions as the President may deem necessary
and adequate for the purpose
 Directions by the Parliament can include
 Provisions for reduction of salaries/allowances of persons serving in the State
 Reservation of all money bills and other financial bills for the consideration of the President
after they are passed by the State
 President can direct the reduction of salaries/ allowances of persons serving the Union, and the
judges of the SC and HCs
 Centre gets full control over the States financial matters
 Provisions based on the National Recovery Act of the United States (1933)
 Threatens the financial autonomy of the states
 No financial Emergency has been declared so far

CRITICISM OF THE EMERGENCY PROVISIONS


 Destroys the federal character of the Constitution
 Powers of the State are concentrated with the Union executive
 President can act as a dictator
 Financial autonomy of the states is negated
 Fundamental rights lose meaning
 The democratic foundation of the Constitution is destroyed
 But Constitution makers justified their inclusion
 Sir Alladi Krishnaswami Ayyar: "the very life-breath of the Constitution"
 Safety valve
 Ambedkar accepted the possibility of their misuse

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DIFFERENCE BETWEEN NATIONAL EMERGENCY AND PRESIDENTS RULE
NATIONAL EMERGENCY PRESIDENTS RULE
Grounds: armed rebellion, external aggression, Grounds: failure of constitutional machinery,
war failure to comply with the directions of the
Centre
State executive and legislature continue to State executive dismissed, Legislature suspended
function. Centre gets concurrent powers or dissolved
Parliament can make Laws on the state List itself; Parliament can delegate the power. Convention:
cannot delegate this power to another body President makes Laws for the state in
consultation with the members of Parliament
from that state. These are called Presidents Act's
No maximum period of operation. Can be 3 years maximum operation.
continued indefinitely with Parliamentary
approval
The relationship of the Centre with all states The relationship of the centre changes only stake
changes with that state upon which Presidents Rule is
imposed
Every continuation resolution needs a special Continuation resolutions need a simple majority
majority by each House of the Parliament
Affects FRs of citizens Does not affect FRs of citizens
LS can revoke it with a resolution Can only be revoked by the President

PRELIMS 2017 96. Which of the following are not necessarily the consequences of the proclamation of the
President's rule in a State?
1. Dissolution of the State Legislative
2. Assembly 2. Removal of the Council of Ministers in the State
3. 3. Dissolution of the local bodies
Select the correct answer using the code given below
(a) 1 and 2 only
(b) 1 and 3 only
(c) 2 and 3 only
(d) 1,2 and 3

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